Background Checks for Gun Purchasers Must Take Family Members into Account

            I loathe to admit it, but the NRA is partially right – the Obama administration’s proposed gun control package would not have prevented the Newtown Massacre. Even if Congress were to close the gun show loophole, prohibit online sales of firearms and ammunition, expand the sharing of mental health information with the ATF and stiffen penalties for straw purchasers, these measures would not have been enough to keep a deadly weapon out of the hands of Adam Lanza.

Such measures might have prevented the likes of Seung-Hui Cho from purchasing a Walther P22 and a Glock 19 (a Virginia judge had declared him to be mentally defective and ordered him into outpatient treatment). They might have prevented Jared Loughner from purchasing his 9 mm Glock at Sportsman’s Warehouse (he had failed an Army drug test). But even universal background checks, with full sharing of all criminal and mental health data of prospective gun buyers with the Bureau of Alcohol, Tobacco and Firearms, would not have prevented Adam Lanza from getting his hands on a .223 caliber Bushmaster AR-15 semi-automatic rifle. Because Adam Lanza never bought this ultra-deadly weapon – his mother did.

 But Nancy Lanza was able to pass a background check, she was able to legally purchase a .223 caliber Bushmaster AR-15 – therefore, Adam Lanza had access to a .223 caliber Bushmaster AR-15. Even had Adam Lanza been committed to outpatient care – as his mother had reportedly threatened to do – then he would not have been able to pass a federal background check, but when he came home he still would have been able to access her AR-15. As a matter of public safety, the law can no longer tolerate this type of scenario.    

            The tragedy at Newtown has brought attention to a glaring weakness in the federal background check system: the prospective gun purchaser is obligated to provide potentially disqualifying information about him- or herself, but he or she has no obligation to provide information about a potentially disqualifying family member who lives in the home. This loophole is a considerable problem, because it allows people whom federal law has already deemed ineligible for gun ownership to own guns – albeit indirectly, in someone else’s name.         

            The Lanzas are not the only duo in the canon of modern criminal law in which one person ineligible to purchase a firearm was able to get their hands on a firearm via an eligible family member. Ex-cons who cannot pass a background checks often obtain guns by having a wife or girlfriend – who does not have a criminal record – buy one for them. The background check is only specific to the person – not the address.  

Take the example of Erik Kenneth Dixon, who shot his sister and her boyfriend with a .45 Glock at a baby shower in Landover, Maryland. As a matter of law, Dixon was unable to legally purchase his gun – he had served almost three years in prison for shooting at a man. However, Cathy Anderson – Dixon’s girlfriend – had no criminal record, and so he had her buy the Glock for him.  

Or Nehemiah Griego, the 15-year-old in Albuquerque who shot and killed his parents and his three siblings. Greg Griego, his father, was an ex-con and a former gang member who could have never passed a federal background check. But his wife, Sara Griego, didn’t have a criminal record, and she was able to purchase a .223 caliber AR-15 assault rifle without a hitch. Though it wasn’t Greg who committed the killings, had Sara been denied a federal background check because of his record, then Nehemiah would not have been able to go on his shooting rampage.  

            I could go on . . .   Just the fact is that this is a known loophole that the criminal community openly and unabashedly exploits. A quick search to a chatroom found a thread that started: 

“My wife went to Big 5 earlier to buy me the Remington 770 7mm that's on sale for $369 and the Douche behind the counter said that it's a felony for someone to buy a gun for their spouse to use. Is this true? . . . I know she should have kept her mouth shut and just bought it she's kinda new to the game..."

The online chorus of ex-cons then goes on to how to effectively exploit one’s wife to evade the background checks. This is a loophole so big they’re bragging about this on the Internet!

            The NY SAFE Act recently signed into law by Governor Andrew Cuomo has made a valiant effort to address the “family member” loophole. Section 265.45 states that:

No person who owns . . . a rifle, shotgun or firearm who resides with an individual who such person knows or has reason to know is prohibited from possessing a firearm . . . shall store [the gun] out of his or her immediate possession  or control without having first securely locked [the gun] in an appropriate safe storage depository or  rendered it incapable of being fired by use of a gun locking device. . .

In New York, at least, for a lawful gun owner to fail to take due care to keep their guns out of the hands of a problem son like Adam Lanza is now a Class A Misdemeanor. That’s a good start.  

            However, the Section 264.45 of the NYS SAFE Act does not go far enough – because no safe is foolproof. More importantly, humans err. Doug Golden was a law-abiding hunting enthusiast in Arkansas who had amassed a formidable collection of two semi-automatic rifles, a bolt-action rifle, and three shotguns. Doug dutifully kept his guns in a lockable safe. But sometimes he left the key to the safe in the lock. And on March 24^th, 1998, Doug’s 11-year-old grandson Andrew Golden and his friend Mitchell Johnson stole Doug’s gun collection, went to Westside High School, and used Doug Golden’s guns to shoot 13 of their fellow students and 2 teachers. When Doug went to the police station to pick up Andrew, his grandson said “Grandpa, I took your guns.”   

            Federal background checks ought to be strengthened by adding a line on the application asking for the names, ages, and Social Security numbers of every other person who lives at the prospective gun buyer’s address. This addition is not at all unduly intrusive – this is basic information about the household which citizens willfully provide to the federal government on every tax return and every Census questionnaire. The federal government already knows who you live with. And if the government doesn’t know because you haven’t paid your taxes, or you lied on your tax returns, no, you shouldn’t be allowed to have a gun either.        

            The policy that needs to change is that the ATF ought to be able to take family information into consideration when assessing whether a person is eligible to purchase a firearm. A convicted murderer is already prohibited from purchasing a shotgun – if that convicted murderer lives with his sister, she should be prohibited from purchasing a shotgun too. A person who has attempted suicide and has been involuntarily committed to outpatient treatment is barred from buying a pistol – so should be her husband or her live-in boyfriend. This is basic common sense. It ought to be the law. 

            It could be argued that such a policy would establish guilt by association, and unfairly deprive innocent people of their Second Amendment rights. Indeed, it would bar a number of people who have committed no crime, who are not by themselves threats to society from owning firearms in their current residence. But it would be inaccurate to say that such a policy is unfair. The Constitution protects freedom of association, but if one chooses to live in the same home with a person who is convicted of a violent crime, who is suffering from severe mental illness, or both, that is a serious choice that the FBI and ATF ought to be able to consider when adjudicating who can and cannot purchase deadly weapons. 

Such a proposed change in the law would not force anyone to give up their guns. If you live with your ex-con boyfriend but you want to buy a shotgun, you can always move out, or you can tell your boyfriend that he has to find a new place to live. You have to choose who you love more: your ex-con boyfriend or your Smith & Wesson. The Second Amendment does not mandate that society must tolerate your ex-con boyfriend skirting around federal background checks to get a shotgun by using his girlfriend as a straw (wo)man. 

Recent events have demonstrated that a person can choose to live with her criminally insane son, or a person can choose to live with a .223 Bushmaster AR-15 semi-automatic rifle. It is gross negligence and reckless endangerment for a person to choose both. Federal background checks ought to adopt this principle by taking account of the criminal records, mental health records, and other potentially disqualifying information about other people who live in a prospective gun purchaser’s home.