COVID response shows a way forward on private gun sale checks

The COVID-19 pandemic has accelerated the adoption of remote business models for services we previously thought could only be delivered in-person, from virtual meetings to online banking to telemedicine. Background checks on private gun sales should join the ranks of remote services, providing gun owners convenient access to information they need to ensure their guns land in good hands.

This can be done by giving buyers a simple way to show gun owners that they’ve been cleared by the National Instant Criminal Background Check System (NICS). Allowing buyers to remotely conduct a “NICS Self-Check” and private gun sellers to remotely verify a positive response eliminates the cost of in-person trips to process the background check through a firearms dealer. Adopting NICS Self-Checks would break the 20-year deadlock on expanding background checks to private gun sales and help keep guns out of the wrong hands.

In most mass shootings, a background check would not have stopped the shooter from buying guns. The shooting a year ago in Midland and Odessa, Texas, is an exception, because the prohibited shooter acquired the gun in a private sale without a background check. But apart from the question of its potential to prevent mass shootings, NICS makes us safer by denying hundreds of guns each and every day to felons, illegal drug users, domestic abusers, illegal aliens, the dangerously mentally ill, and others — stopping more than 3.5 million such attempted gun purchases from licensed gun dealers since 1998. Achieving that benefit for private sales requires public debate about how to make gun eligibility information available to private gun sellers.

Gun dealers can contact the NICS online or by telephone and receive instant information on a potential gun buyer’s eligibility to possess a firearm. Because the Brady Act required the system be designed to serve gun dealers, private gun owners have never had similarly convenient access to NICS when they want to sell a gun. Instead, most proposals to expand NICS checks to private gun transfers mandate what is essentially a consignment sale — dealers take the seller’s gun into inventory, handle the paperwork, run the NICS check, transfer the gun to the buyer, and record the transfer in their records. Dealers are not required to facilitate private sales; when they do, they charge a fee. Under these proposals, gun owners could become criminals for transferring a gun without following an ATF procedure that many consider unreasonably burdensome to seller, buyer, and dealer.

There is another way to expand gun background checks: Establish NICS Self-Check, a quick and convenient remote process for private sellers to obtain the same information NICS provides to licensed dealers.

Gun buyers could initiate a NICS Self-Check online. Online checks would need to be supported by an identity assurance process certified by the Attorney General as meeting security and privacy standards. Examples of such “remote identity proofing” include: (1) knowledge-based verification, like the one used by the Department of Homeland Security’s E-Verify Self Check system, where a third party generates a series of questions only the individual can answer; and (2) apps that scan and validate official photo IDs and use a phone or computer camera to confirm the liveness of subjects and their match to the ID.

Just as the FBI does not charge for NICS checks requested by dealers, there would be no charge for online NICS Self-Checks.

In-person alternatives for Self-Check could also be offered for buyers unable or unwilling to use the online process. In-person options could include gun dealers, law enforcement agencies, and FBI-approved identification service providers (such as “Channelers” and a growing number of U.S. Post Offices that submit fingerprints for FBI criminal history checks). In-person Self-Checks would likely involve a fee by the entity handling the check.

When a Self-Check results in a “Proceed,” the buyer would receive a transaction number with the identifying information submitted for the Self-Check. The NICS would save the transaction number and information (such as date of birth) associating the number with the buyer until the Self-Check expires. All other information about the buyer would be destroyed within 24 hours, as the law requires the NICS to do for all “allowed transactions.” The seller, in turn, would match the buyer’s government-issued picture ID to the Self-Check response and validate the response through a website. The validation process would not require information about the gun and would be designed so the NICS would not keep records on the seller’s identity.

Sellers could receive immunity for later misuse of the gun as an incentive to keep records of Self-Checks. The Self-Check validation response would provide the seller a record of the transaction, supporting immunity claims, proving compliance if the check is required, and assisting law enforcement in crime gun traces. NICS Self-Checks could be valid for 30 days, like current NICS checks, or for another agreed upon period of time, allowing a buyer to do the check before meeting the seller.

Gun self-checks were proposed after the defeat in 2013 of the Manchin-Toomey amendment that mandated checks through dealers on private gun show and internet sales. The late Oklahoma Sen. Tom Coburn introduced an amendment, co-sponsored by the late Arizona Sen. John McCain, to establish an “internet-based, consumer portal” allowing persons to run a NICS “self-background check.” A positive NICS response served as a 30-day “temporary permit” for private gun sales. Coburn argued that easier checks achieve better compliance. Congressional interest in gun measures faded quickly, however, and the self-check idea was never fully explored.

Last year we witnessed another stalemate on expanding gun background checks. The House bill passed in February 2019 would once again have shoehorned private gun transfers into the NICS process created for dealers. The President threatened to veto the bill as an undue burden on Second Amendment rights.

Subsequently, after last year’s mass shootings, the Attorney General floated an idea for expanding checks to private commercial gun sales by supplementing dealers with ATF-authorized “licensed transfer agents” as additional places to do checks and create sales records. That proposal would do little to reduce the inconvenience to the seller and buyer — both would still have to appear before a licensee with the gun and pay a fee. Nor does the idea assuage persistent concerns of gun rights advocates that records on private gun sales kept by ATF licensees is “a prelude to having national registration of guns.”

The fact is, insisting on in-person transactions involving ATF licensees to create chain of title records on private gun sales has been a political Achilles heel of federal background check expansion proposals.

Giving gun owners access to buyer eligibility information through NICS Self-Checks would help diminish private firearm sales as a gun source for prohibited persons. Self-Checks can simplify compliance for both federal and state private sale checks when mandated and empower gun owners to conveniently do checks even when they are not required.

NICS Self-Checks should be part of the discussion on “universal” gun background checks in November’s election. Some will oppose the idea, saying: “Background checks won’t stop criminals from getting guns.” Responsible gun owners can respond by saying: “With NICS Self-Check, I can be sure a criminal won’t get my gun.”

Frank A. S. Campbell is a former Deputy Assistant Attorney General in the Office of Legal Policy at the U.S. Department of Justice and FBI Assistant General Counsel who was one of the original designers of the NICS, writing its regulations and helping oversee its first ten years of operation.  He currently serves as CEO of Highland Strategies, LLC, a security consulting firm in Washington, D.C.