Legislation that does nothing is almost as bad as legislation that overtly harms. It gives people the false notion that the government is doing something for their benefit, a common enough delusion.

This is the basis for the recently proposed ‘‘Background Check Expansion Act,’’ which is the name for the Senate version of the “universal” or “comprehensive” background checks for firearm purchases and transfers.

SIDE NOTE: At this writing the House version has not been filed. The Senate version is the least objectionable variation of such bills. A common legislative technique is to get one body to float a bill to which fewer people would object, let the public believe that is the stated plan, then introduce something more draconian in the other chamber after the public has generally consented to the lesser bill.

At the Gun Facts project, we won’t take ideological sides, but we will see if the bill currently on the table is useful and constitutional. After all, a useless bill is about as desirable as an equally useless congressman.

Quick take-aways

• Best case scenario, assuming high compliance, 425 gun homicides prevented per year
• Zero impact on suicide rates
• Zero impact on mass public shootings
• Most likely will increase underground gun transfers
• At least two significant constitutional questions

The constitutional question

The proposed act is of questionable constitutionality, but this analysis gets dicey.

Two questions are on the table: (1) Can commerce be compelled? and (2) Can interpersonal transfers of firearms be regulated? We won’t try to adjudicate either question, but will gloss over the basic issue.

As the bill is written, if you wanted to sell a used rifle to your cousin, the law would require you to do so through a federal firearm licensee (FFL), AKA a “gun store.” Aside from real-world logistical issues (say, if you and your cousin were rural folk, an hour’s drive from the nearest FFL) there is the matter of having to pay the FFL to do the paperwork. This is commerce, and largely not interstate, which is the only type Congress is permitted to regulate. Hence, to sell your cousin the rifle, you are forced to engage in commerce under penalty of incarceration. This is unlike the forced commerce of Obamacare, where the Supreme Court was intellectually unable to clearly discern a tax from a fine. Prison and a tax/fine are very different things.

There is no constitutional provision for forcing people into commerce. This will be one of the multitude of litigation points should the bill ever crawl out from under Chris Murphy’s desk (and don’t even think about what Murphy does to the law under his desk).

The other question is whether Congress has the power to regulate the transfer of firearms between consenting adults. Again, there is no specific constitutional power for such, at least within a state’s borders. One would have to bow to exotic reinterpretations of the commerce clause to think this was a power vested in the government by the Constitution.

So, before we ask ourselves if the bill is at all useful, let’s just say the pro-gun factions have ample constitutional issues with the proposal (and with an increasingly Heller-friendly Supreme Court, odds are the Supremes will look upon the bill with disfavor).

But will it work?

The bill will do next to nothing to prevent gun deaths. It fails on the criminal, accidental and suicide fronts. We are not saying zero lives would be saved. But we are saying the number will be so small as to make the bill nothing more than a legislative publicity stunt.

What we know – the basic breakdown

LEGAL VIA FFL:                                     11% ILLEGAL/UNDERGROUND:                   40% MIXTURE VIA PERSON-TO-PERSON:  37% UNKNOWN/OTHER:                               11%

Every decade, the Bureau of Justice Statistics (BJS) produces their Firearm Violence report. Among the useful data therein is this handy little table that tells us from where criminals acquired their guns (we’ll get to suicides in a bit).

Looked at a bit differently (and with one tiny data blip concerning flea markets), the breakdown is basically like this:

We have to ignore the last item because BJS lacks clarity into the catch-all category. It would be nice to have 100% knowledge, but we are just mortals.

Combining the other rows, we can safely note that the third row – person-to-person transfers – is the only area where “universal” background checks might have some efficacy. But this bucket is problematic because it has a lot of junk in it, including but certainly not limited to:

• Strawman purchases (already illegal)
• Lending between some family members (permitted in the new legislation)
• Lending to a known prohibited person (already illegal)
• Gifting to a friend (generally legal, with many exceptions, including in the new bill)
• Drug dealer privately pawning a surplus gun to another dealer (illegal on every front)

And so on. The problem is that we do not know what the breakdowns really are. How many of the 37% of guns would not have been transferred to the criminal with “universal” background checks? The likely answer is “very few,” due to legal ease of transfer and illegal ease of transfer.

There are three types of transfers at play here:

Transfers between two people with no criminal record or intent: These are both the people who are infinitely unlikely to commit a gun crime and infinitely likely to obey a background check law.

Transfers to known criminals: If you are lending, giving or selling a gun to a person you know is not allowed to posses one, then you are knowingly committing a criminal act. Odds are you would not obey the background check law either.

Transfers to presumed good actors: You might sell or lend a gun to someone who you do not know is a prohibited person, or who is actually not prohibited but later uses the gun in a crime. For sake of argument, let’s assume (a) everyone selling/giving the gun would conduct a background check and that (b) 78% of the recipients are prohibited (we derived this number by finding the ratio between the FFL crime gun acquisition against the criminals who go straight to the black market). This also means at most only 22% of this group would be caught in a “universal” background check.

The net effect from this rather loose math is that at most 8% of gun crimes could be prevented by “universal” background checks. We have to emphasize could because there is inadequate insight into compliance with such background checks. One interesting bit of research, conducted amazingly enough by the generally anti-gun Violence Prevention Research Program at the University of California at Davis, concluded that California’s “universal” background check “policies were not associated with changes in firearm suicide or homicide.” ¹

When distilled, this means that at very most we might see 1,173 fewer firearm homicides (using 2016 data). But this portion of the 14,415 firearm homicides is highly inflated because …

Our Four Target Groups

The Gun Facts project created the “Four Target Groups” classification, which are the four types of people society does not want to have guns. Those four groups are:

• Criminals (people who actively engage in illegal pursuits)
• Terrorists
• Lunatics
• Hotheads

Let’s ponder the motivations of these shooters and if they would be caught in the snare of “universal” background checks.

Criminals: Very unlikely. The motivation of a criminal is to achieve something (money, sex, violence) through illegal means. As shown by the 40% of crime guns acquired through black markets, and by some unknown percentage of intentionally illegal “family and friend” transfers, criminals are not terribly interested in following the law. This would, with zero doubt, include a “universal” background check. The only way the law would indirectly impact crime would be by adding more charges to a perpetrator after arrest. But this merely extends their jail time – it does not prevent the crime.

Terrorists: As with criminals, the law is rather irrelevant to terrorists. Their goal is to generate a sense of terror in the general public, and there are likely few legal means for doing so, aside from being elected to Congress. Mass public shootings are about the only gun-related terrorist act, and these are very few and far between. The Gun Facts Mass Public Shooting database (still being refined, but to be published) lists only two such instances since 1997 – the San Bernardino Inland Regional Center event, and the Chattanooga military base event. In both those cases, the guns were legally obtained, and hence background checks were already in place.

Lunatics: Again, mass public shootings are a good proxy for the intersection of gun deaths. According to the database, of mass public shootings where the shooter had prior mental health indicators (62%+ of all mass public shootings), 80% of the shooters obtained their guns legally. In 13% of mass public shootings the guns were definitely obtained illegally, typically stolen from someone else (the infamous Sandy Hook Elementary shooting was done with stolen guns). This means at most 7% of lunatic gun crimes might be prevented with a “universal” background check.

Hotheads: Sadly, there is not (to our knowledge) a clear-cut dataset concerning people who go off their rockers and kill someone else. As such, it would be an educated guess as to what percentage of hotheads were of the already listed criminal class, and what subset acquired their guns through FLLs or private transfers. Worse yet, we do not know with precision what percentage of gun homicides were hothead events. Using the FBI’s expanded homicide tables, the sum of the circumstances that are organically hothead events (ignoring drug and alcohol fueled), this category would constitute 2,290 killings. Of these, if we use the percentages of acquisition the BJS told us about before, at worst hothead gun homicides that might be addressed through a “universal” background check would be 847 – and this carries the huge assumptions that the NICS database is fully populated and there is 100% compliance among the otherwise law-abiding citizenry. But we know this number to be high since most hothead shootings derive from arguments, which may be criminal in nature (e.g., gang members arguing over turf). For sake of argument, let’s assume that a full half of hothead homicides are tied to other factors (reasonable, since there were only 76 “romantic triangle” gun homicides in 2017, which gives you some perspective). So, half would be 424 hothead gun homicides.

There were 495 accidental gun deaths in 2016. In other words, the number of gun homicides that might be prevented by “universal” background checks is likely less than the tiny and rapidly falling number of fatal gun accidents. This makes the proposed legislation impractically useless.

Suicide silliness

When cornered on the numbers above, some politicos will claim that background checks will prevent suicides using guns. These people need to read the Gun Facts cross-sectional studies on guns and suicides.

The argument for “universal” background checks goes a bit deeper than the utter non-association between gun availability and gun suicides. The proposal stumbles badly because:

• Not all depressed people seek treatment, and thus would not be in a background database: According to the World Health Organization, less than 50% of people with depression receive treatment. We can safely assume the numbers are similar for the United States.
• Being depressed may not be reported: Even if a depressed person seeks help, there are different degrees of depression, and it is a judgement call on the medical practitioner as to whether someone needs extra attention that leads to reporting.
• Reporting is a bit of a joke: Even if a depressed person is institutionalized, they may or may not get added to the NICS system, based on a myriad of state and federal rules as well as lackadaisical data entry at the local level.

Now it gets a bit more complicated. Depressed people quite typically deal with their depression for a long time, often years. A depressed person can legally acquire a gun before seeking treatment (if they do seek treatment) and may contemplate committing suicide many times over. Background checks would not affect these cases.

The bottom line is that we know guns don’t lead to suicide; they are just one of many tools depressed people might use to die. Thus, “universal” background checks will (statistically speaking) make zero difference in suicide rates.

Ignoring the basics

So why is this impractically useless law being proffered? Because it polls well. According to Pew Research, “majorities of both Democrats (91%) and Republicans (79%) favor background checks for private gun sales and sales at gun shows.” Ignoring any complaints about Pew’s methodologies, we’ll simply state that people support the measure, which is reason enough for a politician for slap together a bill for such.

But would the public still support it if they knew it would save no lives, or so few as to be meaningless? Perhaps not.

UPDATE #1: Newer data

An astute reader (thanks Dave) noted a more recent Bureau of Justice Statistics report ²on the crimes and guns, and the data therein is slightly less optimistic about the success of the any “universal” background check.

The net-net of this is that more crime guns are coming from underground sources, ande fewer are coming from person-to-person (friends and family) transfer. That latter group are the only ones to be affected by “universal” background checks and the rate of gun acquisition in that group is down 32% less than previously thought.