In the next few weeks, expanding gun background checks to cover all gun sales will be at the top of the legislative agenda in Congress. In the wake of mass shootings in El Paso, Dayton and Odessa, expanded background checks have become a priority among Democrats and gained newfound support among many Republicans. President Trump has expressed interest in expanding background checks and Senate Majority Leader Mitch McConnell has said he’s willing to bring a bill to the floor if it is supported by the President. Polls consistently show around 90% of Americans support background checks for all gun sales.
While passing federal legislation is never easy, one issue that is not a concern is the constitutionality of background checks under the Second Amendment. Requiring background checks for all gun sales is clearly constitutional. In the more than 100 years background check laws have existed, no court has ever struck one down. In fact, the constitutionality of background check laws is so clear that groups like the NRA rarely even bother to raise Second Amendment challenges. And, when Second Amendment challenges to background check laws are brought, courts commonly find that challengers lack sufficient injury to even raise the claim. This piece will address why that is so.
The Unlicensed Sale Loophole.
Under current federal law, both licensed gun dealers and private individuals are forbidden from knowingly selling a gun to certain prohibited groups, such as felons, domestic abusers, minors, and fugitives from justice. All licensed sellers are required to do a background check, including a check of federal criminal records databases, on a prospective buyer before completing a sale. In unlicensed sales, however, ignorance is bliss: an unlicensed seller has no duty to conduct a background check or otherwise make sure that a buyer is legally permitted to possess a gun. As a result, approximately 22% of all gun transfers take place without a background check. The proposed policy that may soon be the focus of lawmakers in Washington would close the loophole in federal gun laws and require background checks for most unlicensed gun sales.
Why is it important?
The federal background check system has prevented over 3.5 million gun sales to prohibited individuals since its creation in 1994. In 2017, 39% of the 170,000 prevented sales nationwide were denied because the would-be buyer was found to be a convicted felon.
But due to the unlicensed sale loophole, that denial isn’t the end of the road for prohibited buyers. Right now, a person with a dangerous history who is rightfully denied a gun from a licensed dealer can buy a firearm from an unlicensed seller. This loophole was previously known as the gun-show loophole because many gun show vendors were unlicensed sellers who conducted sales without background checks. The rise of the internet has made it even easier for prohibited individuals to acquire guns, allowing strangers to organize gun sales online before meeting in person. In 2018 alone, 1.2 million ads for sales that did not require any background check were posted on Armslist.com (essentially Craigslist for guns), and approximately 1 in 9 prospective Armslist buyers would not have passed a background check due to their age, criminal record, or history of domestic abuse.
This major loophole in our background check system has consequences. Too many lives have been cut short by convicted felons and domestic abusers who acquired guns as a result of unlicensed gun sales. Expanded background checks can help prevent needless deaths. States that require background checks on all gun sales have lower rates of firearm homicide, suicide, and trafficking. 13 states and the District of Columbia have passed laws requiring background checks for all gun sales, and eight more states require background checks for all handgun sales.
Is it constitutional?
The Supreme Court has not specifically addressed whether background checks on firearms sales violate the Second Amendment. However, the Court is clear that “longstanding prohibitions on the possession of firearms by felons…or laws imposing conditions and qualifications on the commercial sale of arms” don’t even raise serious constitutional concerns. Background checks on all gun sales are a condition on the sale of arms, put in place for the legitimate purpose of preventing people like convicted felons from getting guns. Nothing about that condition violates Americans’ right to bear arms.
Few courts have faced questions about the constitutionality of background checks, and no background check law has ever been overturned on Second Amendment grounds. Multiple constitutional challenges to background check laws have been simply thrown out because the plaintiffs couldn’t even show that the law hurt them. No matter what the gun lobby claims, there is “no serious debate” about whether the Second Amendment permits comprehensive background checks. As one leading constitutional scholar has testified, “Once the constitutionality of prohibiting gun possession by some people is accepted, the constitutionality of a reasonable system of . . . background checks follows automatically.” Even conservative legal scholars agree that a background checks law would not violate the Second Amendment.
Congress has the power to require background checks for all gun sales under the Constitution’s Commerce Clause, which allows the federal government to regulate interstate commerce. The Supreme Court has regularly held that products like guns that have traveled in interstate commerce, or activities that substantially relate to or affect interstate commerce, fall under the Commerce Clause power. Firearms are the products of interstate commerce, and a person who buys another person’s gun affects commerce by not purchasing a gun from a licensed dealer. Congress unquestionably has the ability to place conditions on unlicensed sales.
Background checks prevent guns from getting into the wrong hands, and they are so clearly acceptable under the Constitution that they have barely ever been challenged and no Second Amendment challenge to them has ever succeeded.