Background Noise

Background checks are overwhelmingly popular, so why is it so hard to implement them?

Tucson City Councilman Steve Kozachik has what he considers a pretty common-sense proposal: If people are going to buy firearms at gun shows at the Tucson Convention Center, they ought to have to pass a background check.

"We're going to require a background check on every purchase made at gun shows that occur on city property, including person-to-person sales," Kozachik said. "The only way we can affirm whether or not a purchase is legal is to do a background check."

The City Council is scheduled to take up Kozachik's proposal at what promises to be lively study session next Tuesday, Feb. 5. If the council moves forward with the plan, the city will be testing the legal limits of how background checks can be done under federal and state law.

The so-called "gun show loophole"—which allows the sale of any kind of legal firearm to anyone, with no background check, if the seller is not a federally licensed firearms dealer—has long been a thorny question. Republican Sen. John McCain introduced legislation in 2001 to require background checks at gun shows, but he couldn't muster support to get it out of the Senate.

As federal law now stands, only federally licensed firearms dealers are required to do background checks when they sell firearms. Unlicensed dealers, whether they sell dozens of weapons at gun shows, peddle firearms on the Internet or just sell an old shotgun to a neighbor, don't have to perform background checks. In fact, they can't do background checks because they don't have access to the National Instant Criminal Background Check System, or NICS, a national database that contains the names of people who can't own guns.

The City Council tried to force all gun show sales to go through background checks back in 2001, but ultimately abandoned the idea after state lawmakers amended state law in an effort to thwart the city.

Kozachik first riled up some of Tucson's Second Amendment enthusiasts with a program that allowed people to turn over old guns in exchange for Safeway gift cards earlier this month. (Last week, a group of Republican state lawmakers, including Rep. Adam Kwasman of Oro Valley, introduced legislation that blocks future buybacks by requiring that guns surrendered to cities and towns be resold to gun dealers.)

Kozachik is diving right back into the fight with his call to require that anyone who buys a firearm at a TCC gun show undergo a background check.

Kozachik believes the city is on solid legal ground if it requires background checks as part of the lease to use the TCC, even though state law prohibits cities and towns from enacting gun regulations that are more strict than state law.

He doesn't want Tucson police to be involved in doing the background check; instead, he said it should be the responsibility of the person selling the weapon.

"They can work that out with the people doing the lease on the show or work it out with someone who has a license," Kozachik said. "That's their problem, how they achieve it."

Todd Rathner, an NRA board member who fought the city's proposal for background checks a decade ago, said requiring person-to-person background checks is complicated—and warned it might run counter to state law.

"This has been discussed over and over again," Rathner said. "Federal law doesn't allow a dealer to just set up and do a background check. And the cops can't do it. I don't know if that's going to be part of the discussion or not, but they're just spinning their wheels."

City Attorney Mike Rankin said the city can require background checks as part of the lease, according to a 2002 Arizona Court of Appeals decision that backed up the city's legal right to require the checks, based on its right to manage its property as it sees fit.

Rankin conceded that the Arizona Legislature has changed the law since that decision in an effort to limit the city's ability to require the background checks, but he said "those changes don't override our charter authority, which comes from the (Arizona) Constitution and not from the Legislature."

Rankin "wouldn't be surprised" if the city was taken to court by gun show organizers or the NRA if the council votes to require the background checks next week, but Kozachik said he wasn't afraid of a lawsuit.

"Let them sue us," Kozachik said. "If these guys want to make the argument that it's a good thing for someone to walk up to somebody on the street, give them a pile of cash and walk off with a gun—if they want to make that argument, go ahead and make it. They will lose that in a court of law, they will lose that in the court of public opinion, and they will even further alienate themselves from being able to have a reasonable conversation about this issue in the community."

But Rathner warned that even if the city could require background checks on person-to-person gun sales, there are still legal wrinkles. Federally licensed firearms dealers only have access to the NICS database when they are selling a weapon, so if an unlicensed dealer wanted to ask a licensed dealer to do a background check, the licensed dealer would have to buy the gun from the unlicensed dealer. The licensed dealer would then do a background check to ensure the buyer was not a prohibited possessor.

Rathner offered this what-if scenario: Suppose the buyer doesn't pass the background check. The gun now legally belongs to the licensed dealer. And it's possible, when he tries to sell it back to the unlicensed dealer, that that person might not pass a background check either, leaving the licensed dealer stuck with the firearm.

"Now the dealer has a legal issue where he can't transfer the gun to either person," Rathner said.

Kozachik said convoluted scenarios like that are another example of why the federal law on background checks needs reform.

"That's the tangled web you weave for yourself when you continue to consider these things untouchable community assets, as Todd Rathner calls them," Kozachik said. "These guys tangle themselves up in these rules because they won't engage in a rational conversation about this stuff, and then they claim the rules are too much of a mess and you can't do anything about them."

Kozachik is certainly right about one thing: Background checks are popular with the public. A recent New York Times/CBS poll showed that an overwhelming 92 percent of those surveyed supported universal background checks for anyone who wants to purchase a gun. A Reuters/Ipsos poll put support for universal background checks at 86 percent.

When President Barack Obama released his legislative agenda on firearms earlier this month, the plan called for much broader background checks: "Congress should pass legislation that goes beyond just closing the 'gun show loophole' to require background checks for all firearm sales, with limited, common-sense exceptions for cases like certain transfers between family members and temporary transfers for hunting and sporting purposes."

Gabby Giffords and Mark Kelly, who recently launched the political action committee Americans for Responsible Solutions to push for ways to reduce gun violence, put background checks at the top of their agenda.

"We think that part of the responsibility of being a gun owner is to have a background check before you purchase a gun," Kelly told the Weekly. "I bought a gun from Walmart a few months ago. I had to fill out some paperwork and I had to stand there for about 30 minutes. If that's what all responsible gun owners must do to prevent criminals or the mentally ill from having easy access to firearms, well, I think that's what we need to do."

At the other end of the spectrum, some gun advocates consider background checks useless. Charles Heller, the spokesman for the gun-rights organization Arizona Citizens Defense League, said the checks "don't work."

Heller argued that the Tucson shooter and other mass-murderers have passed background checks and acquired guns legally.

"The whole idea of a background check is so stupid," Heller said. "They simply do not prevent crime. And if you can't pass a background check, look at what happened with (Newtown, Conn., shooter Adam) Lanza. That just shows you what gun laws do—they'll just go steal one and kill somebody to get their gun. Bad people are criminals or they're crazy and you're not going to stop them from getting guns. The only thing you can do is stop them at the scene of the crime."

But as a push for tighter gun laws moves to center stage in Washington, some Republican lawmakers aren't ruling out tighter background checks. Sen. Jeff Flake of Arizona, who was sworn into office earlier this month, is willing to consider reforms to the background-check laws.

Flake spokeswoman Genevieve Rozansky told the Weekly via email that Flake "has always believed that guns should be kept out of the hands of criminals and the mentally ill. He is open to the discussion of broader background checks."

Congressman Raul Grijalva called the Obama administration's push for universal background checks on all gun sales "essential." But Grijalva admitted that passing legislation to require background checks on every single gun sale was unlikely.

"Is that what's going to end up happening? Probably not," Grijalva said. "But the universality of it makes sense and it's the broadest way to close that loophole at gun shows."

Rathner said last week that the NRA didn't yet have a position on background-check reform because there wasn't a specific legislative plan to discuss. But he said that creating a universal background check where every gun transfer is monitored by the government is, in sheer practical terms, a complex challenge.

"It's not as simple as people think it is because of how the system works," Rathner says. "Do you really want people to be able to do background checks on each other? For private citizens to be able to transfer firearms between each other, there would have to be a federal database. ... And a national registry is a privacy issue."

Congressman Ron Barber, the former Giffords aide who was shot twice in the Tucson shooting rampage, has said that he supports universal background checks. But he concedes that the question of whether to extend background checks to all person-to-person gun transfers is a tall order.

"I don't know what exemptions we'll have when we get to the legislation, but I think you have to be realistic about it, about the grandfather who passes a gun along to his grandson, or the neighbor who sells to his neighbor," Barber says. "Pawn shops are required to be licensed and gun shops are required to be licensed and I think that anyone who sells in the public arena needs to be licensed and do background checks. I don't know about the neighbor-to-neighbor buy yet. We'll have to think that through."

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