The registry question hiding inside every universal background check bill

Safe. Fair. Simple. Commonsense. Bills in Washington keep arriving with names like soft drinks. The bill promises to require a background check on every gun sale, and the polling on the headline is always lovely. Then the bill gets read, a few thousand gun owners notice a clause on page 40 about records, the Senate counts to sixty and finds it can't, and everybody on both sides goes home angrier than when they started.

Nobody in this fight is being stupid. That is the first thing to understand. The people who want a check on private sales have a real concern. The people who hesitate have a real concern too. And the two concerns collide on a single point that rarely makes the headline: how do you enforce a check on a sale between two private citizens without writing down who bought what?

That is the registry question. It sits at the center of every universal background check bill ever written, and until you see it clearly you will not understand why the argument never ends.

Defining the terms

Let me do what a debater does first and define the words.

A background check looks up a person. It asks the question: is this buyer legally allowed to own a gun? The federal system does this through NICS, and I walked through the mechanics in what a federal background check covers, and what it never did.

A registry is a list that ties a gun to an owner. It answers a different question: who has this particular firearm?

The two are different things, and the whole argument turns on keeping them apart. A check can exist without a registry. The federal check at a dealer's counter does exactly that: the FBI answers yes or no about the buyer, and the dealer keeps the paper about the gun. No government database lists which firearm is in whose closet.

A universal background check is a rule that would require a check on virtually every transfer, including a sale between two private individuals who are not licensed dealers. Different bills carve out exceptions, such as transfers between close family members or temporary loans, but the principle is the same: no more sales with no check.

So the question is: can a universal check be enforced without becoming a registry?

What federal law says about registries

The law has been unambiguous on this for decades. The Firearm Owners Protection Act of 1986 added a provision to the Gun Control Act that bars the government from requiring that dealers' records be sent to or kept by a federal or state facility, and bars the creation of any federal system of registration of firearms, firearm owners or firearm transactions. (The background is in How the 1986 Firearm Owners Protection Act passed with a machine gun ban.)

That law is why a trace works the way it does. When a dealer sells a gun, he fills in the paperwork, including Form 4473, and keeps it in his own files. If the police recover a gun, the ATF traces it by calling the manufacturer, then the wholesaler, then the dealer, who looks in his own books. If a dealer goes out of business, his records go to the ATF, which stores them. (See What the ATF is, what it can do and why gun owners distrust it.) There is no central file where an agent can type a name and see a list of guns.

One exception sits in plain sight. The National Firearms Act of 1934 created a registry for machine guns, short-barreled rifles and shotguns, silencers and a few other items, kept by the ATF. (See Why the National Firearms Act of 1934 taxed guns instead of banning them.) That registry has existed since 1934, and it covers a tiny fraction of the firearms in America. Gun owners cite it as proof that the government will keep a list if it is allowed to, and the other side cites it as proof that a list has not led to confiscation. Both of those are arguments, not facts. What is a fact is that it exists.

Why the fear is not irrational

The fear of a registry is sometimes sneered at as paranoia. It deserves better, and here is why.

1. A list is a tool. A record that says who owns what can be used for any purpose its keepers choose, now or later. The people who write a record today do not control the people who read it tomorrow. A cautious citizen asks what happens if a hostile government gets the list, or a sloppy one loses it.
2. The best-known North American registry went badly. The best-known case for American gun owners is Canada. Canada's Firearms Act of 1995 created a registry of all firearms, including long guns, with a deadline for registration in the early 2000s. The program became notorious for its cost. Canada's Auditor General reported in 2002 that the costs had far exceeded the early projections. In 2012, a Conservative government repealed the long-gun registry, with the law receiving royal assent in April 2012. The handgun registry was not repealed. I'll note the details of the Canadian case are specific to Canada, and I'm not saying the American system would follow the same path. I'm saying it explains why gun owners see the word "registry" and hear an alarm.
3. Compliance would be uneven. If registration is a hassle for the law-abiding and ignored by criminals, the list is a list of the people who never were the problem.
4. The Second Amendment protects a right, and a right should not require a government list to exercise. We do not make newspaper subscribers register with the state, or churchgoers. Registering the exercise of an enumerated right has a long history of being resisted for a reason.

The case for universal checks, at full strength

Now let me do what a good debater does and state the opposing case the way its smartest defenders would.

"We already agree that felons should not have guns. We already agree that the check works at a dealer's counter. The only question is whether a prohibited person can avoid the check by buying from a private seller. If he can, the law has a hole in it the size of a parking lot. Most Americans support a check on every sale. Why should a stranger's gun show table be exempt?"

That is a strong argument, and conservatives should not pretend otherwise. It appeals to consistency. If the check is a good idea for a sale at a shop, why not a sale at a kitchen table?

There was a serious attempt to answer it in Congress. After the shooting at Sandy Hook Elementary School on December 14, 2012, two senators from opposite parties, Joe Manchin, a Democrat from West Virginia, and Pat Toomey, a Republican from Pennsylvania, offered an amendment in April 2013. It would have extended background checks to sales at gun shows and online sales, with exemptions for transfers between family members and certain other cases. It also included protections aimed at the registry fear: a ban on creating a federal registry, and a penalty for misuse of the records. On April 17, 2013, the Senate voted 54 to 46 in favor, which fell short of the 60 votes needed to get past a filibuster. (The 60-vote rule is explained in Why the Filibuster Is the Best Friend a Minority Party Ever Had.)

Think about that for a moment. A bill with a Republican co-author, and with explicit anti-registry language, still could not pass. Why? Because many gun owners did not trust the language to hold, and many opponents of the bill argued that it could not be enforced without records.

The enforcement knot

Here is the knot, step by step. Suppose a universal check is law.

1. A private seller sells a gun to a buyer in a parking lot. No check is run.
2. A prosecutor wants to charge the seller for skipping the check. What proof does she have that the sale happened?
3. If there is no record of the transfer, she may have only the word of an informant, or the discovery of a gun in the wrong hands and a guess about how it got there.
4. If the law requires a record of every transfer, then the law has created a paper trail of every private sale, and that trail is what gun owners call a registry.

That is the knot. A law that demands a record of every private sale while promising there is no registry is like a restaurant that promises it keeps no menu. A universal check without records is hard to enforce. A universal check with records starts to look like a registry. Supporters answer that the records can stay with the dealer who facilitates the check, as they do now, and never go to the government. That is a reasonable design. The trouble is that records held by a private dealer, for years, in an environment where closing dealers send their files to the ATF, end up in federal hands anyway, and this is a point on which trust is in short supply.

I do not say the knot cannot be untied. I say anybody who tells you it isn't there has not read the bill.

What a skeptic should concede

Fairness runs in both directions, so let me say what the skeptics should concede. Dealer records have existed for decades, and the sky has not fallen. The existing paper trail, held by private businesses, has been part of American gun commerce since 1968. And the National Firearms Act registry, for all its faults, has not been turned into a confiscation list. The honest conclusion is not that records are harmless. It is that the location of the records, the retention period and the penalty for misuse decide whether a record system is a convenience or a threat. Those three details are where the fight should be, and they are the details most bills treat as an afterthought.

A narrower reform

So what would a careful conservative support? If the goal is to make it harder for prohibited persons to get guns while respecting the registry limit, here is a menu of ideas that have been floated in various forms.

• Make the check available, not mandatory. Give private sellers an easy, free way to run a check on a buyer, through a licensed dealer or a direct portal, and give them legal protection if they do. This encourages the careful and burdens no one.
• Check the person, not the gun. Design the process so that the buyer's identity is checked and the firearm's description is never recorded in a government system.
• Short-lived records and real penalties. Require the check data to be destroyed quickly, and impose severe criminal penalties on anyone who uses it to build a list. The Manchin-Toomey approach was a start.
• Exempt permit holders. If a state already requires a check to obtain a carry permit, treat the permit as a standing check.
• Target the real problem. Prosecute the straw purchaser and the trafficker, the person who buys guns for those who cannot. That is an existing crime that can actually be enforced.
• Fix the records. The check is only as good as the records behind it. The NICS Improvement Amendments Act of 2007 pointed in the right direction.

No single idea is a magic wand. But a package built on person-based checks, short retention, severe penalties for misuse and good records addresses both concerns, and it respects the line Congress drew in 1986.

The verdict

Here is where I come down. Gun owners are not afraid of the check. They are afraid of the list that tends to follow it, and they have a historical basis for the fear. Advocates of universal checks are not trying to confiscate anything, and most of them honestly want to keep guns from people who should not have them. Both statements are true. The way through is not to pretend the fear is foolish or the concern is fake. It is to write a law narrow enough that no one has to take anyone's word.

If a bill cannot say, in plain language and with real penalties, that it will not create a registry, it is not ready to be voted on. If it can, it deserves a fair hearing. That is the test I would apply, and it is the test I'd urge every senator to apply. What the Minority Party in Congress Can Still Do When It Doesn't Run the Floor explains the tools senators have for holding that line. And for anyone who thinks this is only about guns, Why Conservatives Defend Due Process Even for People They Dislike makes the broader case that process protects everyone.

The bottom line

• A check looks up the person. A registry lists the gun and its owner. Keep the two apart in your head, and in every bill you read.
• Federal law since 1986 bars a national registry built from dealer records. Any new bill should repeat that ban in plain words, with penalties for misuse.
• The enforcement problem is real: you cannot prove a skipped check without a record of the sale. That is the knot at the center of the debate.
• Narrow reforms exist: optional checks with legal protection, person-based checks, quick destruction of data, permit exemptions, and prosecution of straw buyers.
• Before you support or oppose any bill, read the records section. Then call your senator and ask one question: "Does this bill create a registry, and what is the penalty if the government builds one anyway?"