Blind Identification Database System
system to prevent both gun owner registration and prohibited firearm sales
Brian Puckett and Russ Howard
Version | .pdf version
OF THIS ARTICLE
LOOPHOLES IN THE CURRENT SYSTEM
* Loopholes in NICS
* Loopholes in GCA '68
regarding state sales records
* Loopholes regarding Form 4473
* Summary of
Loopholes in the current system
NEW SYSTEM: BIDS
description of BIDS
description of BIDS
the BIDS database
hardware and software
BIDS database updates
Mechanics of a
retail gun purchase under BIDS
of a retail gun purchase - states with waiting periods
Mechanics of BIDS at gun
with BIDS system breakdowns
Associated with BIDS
regarding the basic goals of BIDS
of current records
(b) Elimination of prerequisites
for private sales
directly regarding BIDS implementation
regarding mutual "sting" protection
Steps in a retail gun purchase under BIDS:
WITHOUT waiting periods
* States WITH
AGAINST BIDS AND RESPONSES
against BIDS by the federal government
* Financial Cost
dealers from making illegal sales
individuals from making illegal purchases
illegal private sales
non-compliance by states
against BIDS by state governments
against BIDS with respect to solving crimes
firearms to licensed gun dealers
firearms to individuals
against BIDS regarding constitutionality
of firearm disabilities
of background checks
against BIDS regarding privacy
against BIDS by gun dealers
The Danger of Registration.
Private sector operation of BIDS
Alternative systems to BIDS.
State Overrides of BIDS.
Underlying social/legal paradigms of Punishment
One: Punishment Should Terminate
Two. Punishment May Continue
Danger of Multiple-Purchase Records
About the authors
Blind Identification Database System
system to prevent both gun owner registration and prohibited firearm sales
OF THIS ARTICLE
article proposes to replace the existing firearm purchase background check
system with an identity search/firearms disability check that eliminates the
risk of gun registration inherent in the current system. The proposed Blind
Identification Database System, or BIDS, is intended to replace the National
Instant Check System (NICS). The purpose is not to endorse or extend background
checks or any existing infringements on firearms ownership or transfer. Rather,
it is to eliminate gun owner registration while continuing to provide for a
system to prevent illegal gun sales by dealers.
BIDS, the word "blind" refers to the fact that the government cannot
detect who is attempting to buy or has bought a firearm and thus cannot add this
person's name to a registry of gun owners. Nor can gun dealers randomly view a
list of persons who have been denied the right to buy, own, and use firearms.
current background check system - NICS - is deeply flawed. NICS provides the
means for the government to create and update, with relative ease, an illegal
registry of firearm owners. Any such registry abuses the privacy and trust of
the people and abuses the intent of the Constitution's Second Amendment. Gun
owner registries have already been created in certain states (Illinois and
Pennsylvania, for example) and the federal government continues to compile a
microfilmed list of gun purchasers via surrendered Form 4473's. [For those
unfamiliar with the history and danger of government gun owner registration,
please see Note 1: The Danger of
Registration at the end of this article.]
proposed system - BIDS - uses computer and internet technology to allow firearm
dealers to determine whether or not a potential buyer is prohibited from
purchasing a firearm, but without the government ever knowing the
potential purchaser's name, or whether or not he actually bought a firearm.
can (1) prevent those who may not legally possess firearms from buying them from
licensed gun dealers, (2) can perform a faster and more thorough search for such
people, and (3) can greatly impede government creation of a firearm owner
registration, which many believe is occurring under the present system.
say "can greatly impede" because actual prevention of such
registration will depend upon abolishing two other de facto state
registration programs: (1) state "dealer's record of sale" (DROS)
programs or the equivalent, in which gun purchases are recorded and filed with
individual states; (2) state firearm purchase background checks, similar to the
federal check. The complete BIDS system includes legislation to end de
facto registration via federal (BATF) individual firearm transaction records
is no sound reason why these de facto state registration programs cannot
be eliminated. In fact, states that cooperate in the BIDS program will have no
use for their own background check systems, which will be rendered redundant.
even if these state programs are not abolished, BIDS will greatly hinder
the continuation of a federal gun owner registry, as well as provide a
more efficient method of preventing prohibited firearms sales.
this article addresses various arguments that might be raised against
implementing BIDS, and responds to them.
to the end of the article are notes on BIDS and related subjects.
records, such as The Federalist Papers, clearly show that the Second
Amendment is intended to stand as a bulwark against establishment of a
tyrannical American government. It is elementary that the spirit of the Second
Amendment opposes the establishment of federal or state registries of gun
owners, which would greatly simplify confiscating guns or rounding up gun owners
by such a tyrannical government. (More on this subject in Note
1 at the end.)
is not merely the opinion of the authors. Recognition of this implied
proscription against the federal government keeping a list of firearm owners has
been codified into existing law, in the Gun Control Act of 1968:
926. Rules and regulations...No such rule or regulation prescribed after
the date of the enactment of the Firearm Owners' Protection Act may require
that records required to be maintained under this chapter or any portion of
the contents of such records, be recorded at or transferred to a facility
owned, managed, or controlled by the United States or any State or any
political subdivision thereof, nor that any system of registration of
firearms, firearms owners, or firearms transactions or dispositions be
language in the so-called "Brady Law" regulations provides that states
which become Points Of Contact (POCs) under NICS abide by certain rules
regarding destruction of records:
25.9(d): "The following records of state and local law enforcement
units serving as POCs will be subject to the Brady Acts' requirements for
all inquiry and response messages (regardless of media) relating to the
initiation and result of a check on the NICS that allows a transfer that are
not part of a records system created and maintained pursuant to independent
state law regarding firearms transaction; and
all other records relating to the person or the transfer created as a result
of a NICS check that are not part of a records system created and maintained
pursuant to independent state law regarding firearms transactions."
there is an obvious, historical agreement concerning the danger of allowing
government to compile a list of gun owners. If there were not, the above
provisions of law would never have been written.
LOOPHOLES IN THE CURRENT SYSTEM
authors regard as a loophole any legal requirement, system, or program that
enables the compilation of a gun owner registry, as it violates the intent of
the Second Amendment and the "no-records" provisions of subsequent
federal gun laws.
currently set up, the National Instant Check System (NICS) requires anyone
trying to purchase a firearm from a licensed firearm dealer to submit his or her
name to the government and then undergo a background check. A record of the
check is submitted electronically by the gun dealer and is recorded by the FBI,
which administers the NICS system. Thus, anyone who has submitted to a NICS
check can be presumed to own a gun if he or she passes. If so desired, the
actual sale can be verified via a gun dealer's Form 4473 records.
NICS enabling law prohibits the federal government from permanently holding such
records. But this law has already been violated by the federal
government, which later declared it could keep the records for at least six
months before presumably purging them.
fact there is no way to prove that NICS records are ever being completely
purged. Sworn testimony from government officials to this effect is meaningless
because no official can personally monitor his purview 24 hours a day.
long and painful experience has led many citizens to conclude that government
officials can and often do lie with impunity.
such records can be stored and copied with ease onto portable data storage
devices (such as CD-R's) and/or may be sent electronically to other government
entities to hold, thus "technically" complying with the law while in
fact flouting it.
as configured, NICS can produce a growing, up-to-date, permanent federal
registry of firearm owners. Despite official protestations to the contrary, the
authors (and many others) believe there is a substantial probability that this
is occurring right now. But even if we are wrong, the lessons of history and
basic prudence dictate that NICS be replaced with something more in line with
the Second Amendment and existing statutory law.
in GCA '68
is an obvious loophole to the "no records" rule built into the Gun
Control Act of 1968: the federal
government is allowed to take possession of the records of gun dealers
who close their businesses. Thus the government has already compiled a massive
list of gun owners dating back to 1968.
argue that there is a further loophole in the language of GCA '68 itself:
such rule or regulation...may require ...that records...be recorded at or
transferred [to a facility of the] United States or any State...nor that any
system of registration ... be established". The loophole is in the words "may require..."
Although the intent seems clear, GCA '68 does not directly prohibit such
record keeping or registration. It simply says no rule or regulation can require
it. Thus some person or agency might record or transfer records voluntarily
and still technically be in compliance with the law. We believe that may have
as discussed below, prudent citizens should deem even the existence of private,
dealer-held lists of gun owners as required by GCA '68, the locations of which
are known to the government, to constitute the equivalent of a government
regarding state sales records
states are themselves running de facto firearm owner registration programs.
Generally this takes the form of a "dealer's record of sale" (DROS)
form, or the equivalent, for each firearm purchase. Following a retail sale, the
forms are immediately sent to the appropriate state agency in paper or
electronic form. These forms comprise another growing, up-to-date list of gun
regarding Form 4473
U.S. Treasury Department's Bureau of Alcohol, Tobacco, and Firearms (BATF, or
ATF), requires licensed gun dealers to fill out, for every sale, a Form 4473
("Firearms Transaction Record - Over the Counter"). This record
contains the buyer's name and other information. These records are kept by the
dealer at his place of business and may be examined at any time by the BATF.
whenever a licensed gun dealer (often referred to as an "FFL" since he
holds a federal firearms license) closes his business, all of these records
are turned over to the BATF. This is not a minor concern; the BATF has about
400 million microfilm images of surrendered forms. They represent, according to
an estimate by the International Association of Chiefs of Police, at least
100 million individual transaction records, which clearly comprises a very large
registration list of gun owners.
enormous number of individual transaction records are held by existing gun
dealers. But even if such records were never turned over to the
government and were never examined at will by the government (which is
not the case), their very existence is still contrary to the spirit of the
Constitution and constitutes a grave danger to the nation. The government can
use broad-based warrants signed by compliant judges to seize and copy such
records. Or worse, a government in an advanced stage of tyranny would likely
dispense with such niceties as search warrants and simply seize the records.
of loopholes in the current system
bottom line is that, under the current system involving NICS plus GCA '68 plus
BATF transaction records plus state transaction records/background checks (which
we will refer to as NICS/GCA '68/Form 4473/DROS) we can never be certain
that a growing record of gun owners is not being compiled.
the contrary, common sense, experience, and prudence dictate the assumption that
NICS/GCA '68/Form 4473/DROS has already produced large-scale gun owner
registration. Additionally, any other lists of gun owners known to the
government, even if they are currently in private hands, pose a grave potential
danger to individual Americans and constitute de facto registration.
only way to be sure the government is not keeping records, and is thus complying
with the intent of the Second Amendment (underlined by the "no
records" provision of GCA '68) is if it can never find out who buys
guns in the first place.
NEW SYSTEM: BIDS
description of BIDS
The name of the new system we are proposing is the Blind Identification
Database System, or BIDS for short.
The heart of BIDS is an encrypted database of all persons who are prohibited
from owning, using, or purchasing firearms. Only prohibited persons are in the
database - no information on other citizens is in the database, ever. The BIDS
database would be supplied to all licensed firearm dealers, who would store it
in a dedicated BIDS computer or computers. Firearm dealers would verify the
prospective gun buyer's driver's license or state-issued ID and enter name, date
of birth, and state ID number into their BIDS computer. The computer would then
search the encrypted database for a match.
If there were a match, the
computer would display that name and associated information, and the prospective
buyer would be prohibited from making the purchase. If there were no match, the
computer would display a message stating that fact, and the sale could proceed.
No computer report or record is made of the name being searched for, so BIDS
never informs the government as to who is attempting to buy a gun or who
actually buys a gun.
A legal revocation of a civil or constitutional right is referred to as a
"disability". From here on, we will refer to people who have any legal
disabilities regarding firearm ownership as "firearm-disabled
persons". We will refer to the
database listing such people as the "firearm-disabled database" or the
prevent misuse of information in the BIDS database, and to comply with existing
privacy laws, the database would be accessible only to licensed dealers who were
given the access key. Furthermore, records in the database would be individually
encrypted so that a dealer could not peruse them at will. In other words, no
records would be viewable unless it were the result of a particular name/ID
match. (More on what constitutes a match below, in Detailed
description of BIDS.)
comply with existing state privacy laws and to prevent malicious use of
information, the information displayed following a search match would not
divulge the particular reason for the firearm disability, whether it be
conviction for a crime, a history of drug abuse, or a mental disability.
would at most note the nature of the disability, such as lifetime
prohibition for possession of any firearm. Even that information need not be
displayed; the presence of a name on the list could mean, by itself, that the
person was generally firearm-disabled. If that person's status changed, his name
would be removed. But again, no one except the federal authorities and/or
authorities in the individual states that submit information to BIDS would ever
know why there was a firearm disability.
complete the BIDS system, additional peripheral laws will be required in order
to protect the government and its agents, firearm dealers, and gun buyers.
desired, BIDS could be phased in as NICS was being phased out.
description of BIDS
the BIDS database.
is important to note that: (1) much of the most current information needed to
create a BIDS database already exists in electronic form; (2) much of the
infrastructure needed to keep BIDS updated already exists; (3) a
"mini-version" of BIDS already exists.
these points in order:
currently accesses at least four databases that would form the initial core of
National Crime Information Center (NCIC) database;
Interstate Identification Index (III) database;
the Denied Persons database.
of the above, including any and all state prohibited person electronic
databases, could be integrated to form the original BIDS database.
that participate in the NICS Point of Contact system already have the mechanism
in place to search for criminal and other firearm-disabled persons and report
this information to NICS. They could just as easily contribute to the BIDS
database. States that for various reasons (such as state privacy laws) do not,
or may not, fully participate in NICS will be free to fully participate in BIDS
(more on that later).
entering the most easily accessible firearm-disabled person information into the
BIDS database, individual states would start with the most recent years and
going back in time as they continued to search written and electronic records on
firearm-disabled persons that would be added to the BIDS database.
basic concept of BIDS is already being used by NICS. NICS maintains a denied
persons database, which consists of every person who has undergone a NICS
background check and has failed, i.e., who has been identified as a
firearm-disabled person. Whenever the name and ID particulars of a person
attempting to buy a firearm is submitted to NICS, the denied persons list is
searched. "Denied" responses are virtually instantaneous.
that this denied persons database need contain only the name and ID
particulars of each entry and nothing else in order to give a
"yes" or "no"- just as would the BIDS database. Whether this
is actually the case is not known to the authors, nor is it relevant. The
difference between the denied persons database and BIDS is that with BIDS the
government would never know the name of people who were able to buy a
hardware and software.
authors propose that firearm dealers utilize, in their place of business, an
ordinary internet-compatible computer (or computers) equipped with a hard drive
and a CD drive. The hard drive of the computer would be loaded, via either a
government website or a set of CD's, with a date-stamped, encrypted
comprehensive database containing the name and associated ID information
(driver's license or state ID card number, date of birth, and perhaps other
desired descriptors) of every U.S. resident with a firearms rights disability.
Known aliases or name versions used by firearm-disabled persons could be
included in the system as separate entries.
BIDS database would be secured from the general public by means of secure
authentication protocols, such as Secure Sockets Layer protocol or PGP and/or
unique log-in ID's.
the gun dealer's hard drive was loaded with the date-stamped BIDS database, the
dealer would use it to search for the names of prospective gun buyers.
specifically: a dealer would load onto his computer, from disk or internet, an
open source code program that performed a BIDS search when the required search
fields were entered. The search fields would consist, at a minimum, of first
name, middle name(s), last name, date of birth, and driver's license number or
state-issued ID number. For persons with no middle name, a simple code such as
"nmn" could be entered for that search field. Note that these search
fields are precisely those used by NICS to initiate a criminal background check
prior to a firearm purchase.
BIDS database would be encrypted so that it could not be perused at will by gun
dealers or anyone else. Each record could be individually encrypted. The
database could include other descriptors, such as height, weight, eye and hair
color, and last state of residence.
there would be an encrypted code that indicated the source that originally
provided a particular firearm-disabled person's name to the BIDS database; i.e.,
either the federal government or a particular state. In case of a dispute over
firearm disability, this would allow backtracking to confirm that a particular
person did indeed belong in the BIDS database, while not compromising privacy
laws. For example, if a person contested his or her inclusion in the BIDS
database, and the record that led to the inclusion were a privacy-protected
state record, that state would be contacted. The state would then simply confirm
or deny that the person belonged in the database. Any further dispute would be
between the plaintiff and the state.
BIDS search program would be separate from the BIDS database and written in open
source code. The database format would be a simple, open design. Thus, outside
contractors and gun rights organizations could examine the database format and
search program to make certain no changes were made during updates that would
allow the government to keep track of names for which a gun dealer had searched.
BIDS database and update system could be operated by private contractors, and
these could be rotated every few years to lessen the chance of government
coercion or influence, though that would involve a trade-off in that it would
lower the incentive and raise the cost of being one these contractors. In any
case, the system could be periodically audited by other contractors and
interested organizations to detect program tampering that would provide the
government with a list of searched names.
predetermined intervals (the authors recommend no more often than one week, for
practicality) gun dealers would be required to access a program that would update
the BIDS database. This BIDS database update would occur in essentially the same
manner as websites operated by suppliers of anti-virus programs. It would
consist of adding new firearm-disabled persons to the database, and deleting
the names of any persons whose firearm disability had expired, been legally
removed, or determined to be incorrect.
another parallel to anti-virus updates, the BIDS search program would keep track
of when the last update was performed. If the last required update were not
performed, the search functions of the BIDS program would be disabled.
the cases of phone, internet, or BIDS website interruptions or outages
preventing database updates, see the section below titled "System
of a retail gun purchase under BIDS.
order to (1) discourage firearm-disabled persons from attempting to buy firearms
from licensed gun dealers, and (2) to protect dealers from false charges
supported by altered information, a prospective gun buyer would hand over his
driver's license or state-issued ID card to the firearm dealer at the time of
purchase. Using information from the driver's license as the source, the dealer
would then enter the customer's first, middle and last names, date of birth, and
driver's license or state ID number into the search fields of the BIDS computer.
initiating the BIDS search, the dealer would temporarily place the customer's
driver's license or state-issued ID card inside a fixed lockbox in the store. (A
lockbox, especially one operated by a keypad, would not be a great inconvenience
for either dealer or customer, as currently gun dealers often walk away with a
customer's license or ID card while performing paperwork or NICS entries.) The
dealer would then initiate the BIDS search for the customer's ID parameters. If
all the search fields were not filled in, the system would not perform the
search. This would prevent unauthorized database "mining" for
information on individuals.
would display a match (or matches) whenever any of the following combinations of
customer fields corresponded with those in the BIDS database:
name (f,m,l) + driver's license/ID number
name + driver's license/ID number
name + driver's license/ID number
name + driver's license/ID number
name (f,m,l) + birthdate
and last name + birthdate
a match of state ID number or driver's license number includes matching the
state that issued it, in case different states have duplicate license numbers.
the problem of identifying firearm-disabled persons who have legally changed
their names cannot be addressed by either BIDS or NICS; it is a problem that
must be solved by legislation and cooperation among the states.
If the BIDS search turned
up a match, the sale would be prohibited. Indeed, the law might then require the
dealer - who would still have the customer's driver's license or state ID card
in his fixed lockbox - to report this prohibited purchase attempt to
authorities. Of course, the details of such a requirement would have to take
into consideration all practical and legal ramifications. For example, due to
the complicated and unconstitutional nature of most current firearms laws, and
because the potential for false match exists (that is, a non-prohibited person
may have the same name and birthdate as a prohibited person in the database),
any such requirement should allow potential buyers to have dealers run BIDS
checks to make sure they are eligible or that there are no potential problems
before they attempt to purchase a firearm. Were BIDS implemented, it would
probably become common practice for anyone about to buy a gun to have a check
run on himself prior to actually announcing a definite intention to buy a
particular gun. In the end, the best solution will probably be that database
matches are not reported.
it would be statistically very rare, some people might have precisely the same
name and birthdate of a firearm-disabled person. Comparing driver's license
numbers or state ID numbers wouldn't necessarily clear up the confusion, because
currently there is no cross-reference or updating system for people who move
from one state to another and get another driver's license or ID card.
could clear up any confusion would be other descriptors in the database
that could be easily verified with a quick but careful examination, such as
height, eye color, or any distinctive body characteristics listed in the
database for the firearm disabled person.
place of birth could be employed, which would require production of a birth
certificate. The gun dealer would have the right, but not the obligation, to
complete a sale based on such secondary information.
that, there seems to be no remedy other than referring to a centralized database
such as the NCIC for final determination. However, to prevent this person from
being forced to undergo an NCIC check in the future, a unique clearance number
could be issued to him. Following a regular BIDS check, this number could be
phoned in or submitted electronically by a gun dealer for confirmation by the
the BIDS search produced no match, the sale would proceed.
of a retail gun purchase - states with waiting periods.
authors believe that firearm purchase waiting periods are an unconstitutional
infringement on the right to keep and bear arms. Such waiting periods should be
viewed with the same revulsion as waiting periods for purchasing religious
scriptures; for publishing news, fiction, or non-fiction material; or for
exercising free speech or assembly rights, etc. Furthermore, there are
documented cases of people (often women) who were left defenseless by a waiting
period and were assaulted and/or killed. This
is confirmed by academic research. According to Yale Professor John Lott,
"While research shows that even short waiting periods increase rape rates,
waiting periods longer than 10 days increase all categories of violent
crime." ("Some Time To Kill: In Waiting Periods, Gun Buyers Are At
Mercy Of Criminals", by John R. Lott Jr., Investor's Business Daily,
until such waiting periods are eliminated BIDS must take them into account.
Consequently, where a waiting period is in effect, once the dealer completed the
BIDS search and determined that a customer was not on the firearm-disabled list,
he would give the customer a card or slip of paper containing a unique, dated
transaction number, and the dealer would keep a copy of the number in a secure
location. When the waiting period was over, customer would return and produce
his transaction number, which would be matched with the dealer's number. Another
BIDS check would be run, and if there were no match the transaction would take
of BIDS at gun shows.
shows might provide problems for our proposed system only if the BIDS database
update were required on a daily basis. The authors believe that would be far
more often than necessary, and that it might prove excessively costly.
let us assume the update were required on a daily basis. For gun shows with easy
access to phone lines (and electricity, of course), a dealer could take a
BIDS-equipped computer to the show and proceed just as if he were in his regular
retail outlet. Alternately, or additionally, the gun show producers could
provide BIDS terminals for dealers. If necessary for whatever reason, dealers
could use, for example, a Zip disk or the like to retrieve and install a
required update from a gun show's centrally-accessible computer.
gun shows without phone lines, and therefore without easy access to the
internet, there are at least two possible solutions. One would be accessing the
internet via a wireless setup, perhaps provided by the show producers. A second
solution would be for firearm dealers, at the close of the show each day, to
physically take their computer back to a location where the BIDS database update
could be performed. A third possibility would be for updates to be legally
suspended for two or three days on the particular computers that dealers took to
the gun show. This would require some form of official "permission" be
given to the BIDS search program, which would otherwise shut itself down.
simplest and most practical solution would be making BIDS updates required at
intervals of at least three days, which would cover the time span over which
nearly all gun shows take place. With a three-day update interval, there would
still be virtually zero probability of allowing any particular firearm-disabled
person to pass a BIDS search and buy a gun, unless that person would have gotten
through whether the system was updated or not.
with BIDS system breakdowns.
firearm dealer would have the option of utilizing one or more separate hard
drives as back-ups. This would prevent having to suspend sales in case of a main
hard drive malfunction.
other system breakdowns could occur. One would be a breakdown of the BIDS
database update website. The other would be a breakdown of telephone or data
line that supplied a gun dealer with internet access. This could occur in the
case of a natural disaster or civil unrest, which are the very times during
which many people suddenly grasp the wisdom of being armed and attempt to buy
guns (the LA riots being a perfect example). Yet these people might be prevented
from making a life-saving gun purchase if a dealer could not complete a
scheduled BIDS database update.
solution is having a maximum waiting time per day - for example, 30 minutes -
for access to the database update website. If a dealer's BIDS program indicated
that it was time to perform a database update, but the database update website
was not available due to interrupted telephone service or to internet server(s)
being down, the BIDS interface program would note that an attempt had been made
to log onto the site. After the thirty minutes had elapsed, and after a second
attempt to log on had been attempted and had failed - due to the telephone
system being down or due to the internet server being down - the BIDS search
program would become operational again, and would utilize the last saved copy of
the BIDS database.
BIDS search program - after becoming operational again due to a second failed
attempt to log onto the update site - could automatically make periodic attempts
to re-contact the update site. The search program would remain functional at
least until the next scheduled update time, after which another manual attempt
to update the BIDS database would be required.
the BIDS program could be configured to keep an internal record, and/or to
notify appropriate private and government agencies by email (when the telephone
system became operational) that the system was down for this particular user.
This would provide confirmation for reasons of legal liability.
arrangement would provide an incentive for the government to make certain the
BIDS update website(s) was operational at all times, and would prevent the
government from halting gun sales by shutting down the system at its whim (which
it is suspected of having done already - more that once - with NICS).
associated with BIDS.
will be required in order to fully implement BIDS. Some would relate to the two
basic goals of BIDS and some would relate directly to implementing BIDS. We will
deal with these in order.
Laws regarding the basic goals of BIDS.
two basic goals of BIDS are preventing gun owner registration and preventing
prohibited firearm sales. Specific
concurrent legislation will be required to achieve these goals.
Elimination of current records.
purpose of BIDS is to eliminate possible gun owner registration via NICS
background searches and associated records. If that goal is valid, then it makes
no sense to continue other methods of gun owner registration. Therefore any
requirement that dealers enter the names of gun buyers on firearm transaction
records (such as BATF Form 4473, or state Dealers Record of Sale forms) should
be halted. There is no point in keeping one branch of the government from
compiling a list of gun owners if other branches are doing that exact thing.
keeping with the overall goal of eliminating gun owner registries, ideally every
gun owner's name would be deleted from every existing state and federal
electronic registry, and from every paper record in federal, state, or private
for example, the existing BATF Form 4473: any form whose contents have been
electronically recorded would have gun owner data deleted. Microfilm records
could be physically altered. Any forms whose contents have not yet been
photographically or electronically recorded (such as those in dealers' hands),
could be run through a machine that prints over the buyer's signature, rendering
it illegible, and then through another machine that cuts off and shreds the
upper part of the form, leaving the part (section D in the current version) that
contains the firearm's serial number, transaction date, seller (transferor)
business name and address, and the seller's signature. This purging program
would be made easier by simply destroying any transaction records older than a
certain age, whether held in government of private hands.
may seem a radical proposal to those unconcerned about the growing government
mania for collecting information about citizens (reminiscent to the authors of
Nazi Germany or the Soviet Union) of which the latest U.S. census form is a
prime example. It may also seem radical to average citizens - even gun owners -
who have become inured to our current unconstitutional and dangerous systems of
de facto registration.
we point out that the United States somehow managed, before the first federal
registration schemes for common firearms appeared a little over thirty years
ago, to not only survive but to become the greatest and freest nation on earth.
And we point out that the existence of gun owner registries, aside from
violating the intent of the Second Amendment, provide an ongoing temptation to
state and federal administrations intent upon undermining the Constitution's
protection of individual rights. New York State's experience of gun registration
followed by harassment provides an example.
proposal to destroy all gun owner registries may also seem radical to those who
believe such registries are vital to controlling, preventing, and solving crimes
and to prosecuting criminals. But after examining the statistical and empirical
evidence and applying common sense, the authors conclude that the value of
registries in accomplishing these goals is tremendously overrated. Both on an
absolute basis and compared the constitutional erosion and practical dangers
created by gun owner registration, the crime-fighting value of tracing guns back
to their last recorded retail purchaser is inconsequential. There is more on
this subject under the sub-heading Arguments
against BIDS regarding solving crimes below and in NOTE
6 at the end of this article.
we believe that focusing on one particular tool used in some crimes is
misguided and wastes resources. Society's funds would be far better spent on all
aspects of dealing with the perpetrators of violent crimes. This would
include heading off criminal development by moral and ethical training at a
young age; increasing emphasis on police work and crime solution; educating
convicts; enacting swift, certain processing in the court system; and imposing
meaningful punishment for crimes. Compared to these things, the fastest, most
efficient, and most computerized gun-tracing infrastructure in the world is
insignificant as regards reducing crime.
eliminating purchaser names from government records does not mean that
firearms could not be traced back to the licensed dealer who sold the
inventory records is common and necessary practice in any business. The thing
that is not common and not necessary in other businesses, and
which violates the intent of the Second Amendment and subsequent
anti-registration provisions of GCA '68, is the requirement to record the
name of the purchaser.
Elimination of prerequisites for private sales.
authors believe there should be no mandatory system for checking on the
purchase of firearms sold by one non-dealer person and bought by another,
whether it occurs in a home or at a gun show. Such a sale is nothing more than
the transfer of chattel from one person to another. Such sales have been legal
on this continent for hundreds of years, and are part and parcel of the right to
own, use, and dispose of private property.
authors realize that some legislators wish to make background searches mandatory
for private sales at gun shows. There are at least four powerful reasons for not
doing this, and one reason as to why it is superfluous.
as noted, such a law would be a gross infringement upon privacy and property
rights and anathema to the Constitution. While occasionally an unsuspecting
person might make a private sale to a firearm-disabled person, it is hardly
worth violating fundamental privacy and property rights for such a rare event.
a law making background checks or name searches for private sales at gun shows
mandatory would be worthless, since buyer and seller could simply walk off the
gun show premises and complete the sale. Why pass a law that can be circumvented
such a law leads enemies of the Second Amendment to insist on mandatory
background checks or name searches for all private sales, gifts, or
transfers - even for example, when a husband gives his wife or daughter a gun.
is not prediction or speculation, but fact: there are ongoing state and national
campaigns to require background checks for private gun transfers.
because any such laws will be routinely violated by millions of Americans who
feel the government has no right to know about or interfere with the private,
legal disposition of their property, they will hold such a law in contempt.
Contempt for one law breeds contempt for laws in general, and contempt for and
estrangement from those who enforce them, all to the detriment of society.
private buyers and private sellers who were concerned about criminal prosecution
already have reason to avoid illegal sales because both parties would
risk prosecution; the buyer because he may not legally possess a firearm,
and the seller if it could be proved that he had foreknowledge that the buyer
was firearm-disabled. Private buyers and/or sellers who are not concerned about
criminal prosecution - in other words, career criminals - are obviously not
going to be deterred by a law prohibiting them from purchasing a firearm at a
gun show without a background check - or anywhere else. In any case, criminals
have little incentive to purchase firearms in retail establishments or gun shows
because (1) firearms are readily
available on the black market, (2) retail firearms are often much more expensive
than on the black market, (3) firearms can often be rented on the black market
for a charge far less than its legal or black market purchase price, (4) there
is a greater chance in the retail market that faces may be recalled by
if a private seller were concerned about a potential buyer's firearm rights
status, he could require, before completing the sale, that the potential buyer
accompany him to a nearby firearm dealer. Here, the potential buyer would have
the dealer run a BIDS name search on himself and verify to the seller that the
buyer was clear to purchase the gun. Dealers could perform such name searches
for any person who provided proper ID, and could of course charge for their
labor. Given the current fees
dealers tend to charge for such services in the competitive retail market,
private transfer BIDS fees should be nominal.
the above reasons, the authors will never endorse either background checks or
BIDS name searches for private sales, no matter where they take place.
And despite this very proposed system of name checks, the authors do not endorse
background checks or name searches for any firearm sales. For an
explanation of this position please see Constitutionality
of background checks and the subsequent Response).
Laws directly regarding BIDS implementation.
noted above, for normal business reasons gun dealers would still record the
serial number of the firearms bought and sold. But they would not be required to
record the names of firearm buyers.
would not be legally prevented from recording buyers' names in every
case. For example, if a buyer used a credit card to purchase a firearm, the
dealer would of course keep at least a record of the credit card number (which
is tied to his name) until he received full payment from the credit card issuer.
The same would hold true with personal checks. Such means of payment are
unavoidably less private than cash. For example, in the credit card case,
presumably the dealer's bank, the buyer's bank, and the credit card company
would all keep transaction records. With the constantly decreasing cost of
information storage, such records could be kept indefinitely.
the other hand, dealers would not be allowed to record the names of a
buyer who paid in cash unless the buyer agreed to it. Buyers would decide
whether or not to use a credit card, check, or any means that automatically
leave a record of his name, instead of cash or some form of money order that
leaves no paper trail.
a dealer - for whatever reason - insisted on recording the names of his
customers, he would be required to prominently post notice of this fact in his
store. The public could decide whether or not to patronize this dealer.
would be illegal and punishable for a dealer to claim not to be keeping a
record of buyers' names when in fact he was.
would be illegal for any law or government program, whether by design or
unintended consequence, or via business or financial considerations, to coerce a
firearm dealer into recording the names of firearm purchasers.
would be illegal and punishable for a dealer to make audio or video recordings
that might reveal buyers' names, unless such recordings were on a relatively
short continuous loop that was used only for security purposes.
would be illegal for the dealer to allow access to any person other than
authorized employees to any such audio, video, or graphic recording of buyer
identification information unless such access was authorized by a search
would be illegal for a dealer or his employees, or for any bank or credit card
company, to transmit information that might reveal the names of a gun dealer's
customers to any person or government agency, unless under court order to do so.
would be illegal for government agencies to examine dealer sales records that
contained gun buyer names, or to examine the records of financial institutions
for same, except under normal rules of probable cause and warranted search for
would be illegal for any government agent to receive the names of firearms
buyers, or audio or video records of gun sales, from a dealer, without a search
warrant authorizing such reception.
records would be required to be turned over to the government following the
closure of a gun dealer's business, though sales records might be required to be
stored by the dealer for a set number of years for tax purposes. For credit card
or other non-cash transactions, gun dealers and financial institutions could
legally purge gun buyer names and other identifying information from the
government employee, agent, or contractor proved to have knowledge of illegal
possession of dealer records or knowledge of a list of firearm owners would be
liable for criminal charges, and no such illegal records would be admissible
into evidence in a court of law.
Laws regarding mutual "sting" protection.
would be simple for the government to verify a dealer's compliance with BIDS by
temporarily inserting a false name and ID into the BIDS database, then trying to
complete a sale.
respect to such "stings" by government agents acting as
"purchasers", it would be mandatory that any arrest for an illegal
sale be made after the firearm was physically handed over to the
"purchaser" but before the dealer handed over the ID that he
had locked away during the BIDS database search process. This would allow the
dealer to maintain physical possession of the ID as exculpatory evidence. That
in turn would help prevent a government "sting" purchaser from using a
good ID card to clear the BIDS search, then switching it for a false ID card and
claiming that the dealer made an illegal sale.
simple terms, no dealer could be arrested or prosecuted for an illegal sale after
returning the purchaser's ID related to that sale. In fact, an arrest would be
invalid if the customer's ID were anywhere outside the dealer's
lockbox. The only valid arrest would be one made while the ID was inside
the lockbox. Clearly, if only the dealer or his employees have access to the
lockbox access code/combination, then it would be difficult for the arresting
agent to plant false ID in the lockbox before, during, or after the arrest. The
method of verifying the contents of a lockbox after an arrest in a way that
protects the rights of all parties can be worked out in a number of ways.
would be illegal for a dealer to hand over a customer's ID at the same time he
handed over a just-purchased firearm, thereby avoiding arrest for a prohibited
sale. Compliance could be promoted by using a current enforcement tool: secretly
recording (video and/or audio) of retail firearm sales. Such recording could
only be made of actual "sting" attempts. Recording sales to
non-firearm disabled customers would be prohibited.
Finally, insertion of
false "prohibited persons" into the BIDS database for the purpose of
testing compliance with the system should be limited in the number of false
names inserted and limited in the length of time the names are allowed to remain
in the system. This will prevent the government from seeding the database with
numerous names that might produce false matches, which would cause unnecessary
problems for buyers who have the same name as a prohibited person.
Steps in a retail firearm purchase under BIDS
WITHOUT waiting periods.
(1) Customer selects the
gun he wishes to buy. (2) Customer provides ID (3) Dealer places buyer's ID in
store lockbox and performs BIDS search. (4) Buyer passes BIDS search. (5) Dealer
places the gun out of buyer's reach behind counter or elsewhere, so that there
is no question of having transferred the gun to the buyer at this point. (6)
Buyer pays for the gun. (7) Dealer gives the gun to the buyer, who verifies it
is the correct gun. (8) Dealer unlocks store lockbox and gives buyer his ID.
WITH waiting periods.
Customer selects the gun he wishes to buy. (2) Customer provides ID and dealer
performs BIDS search. (3) Buyer passes BIDS search. (4) Dealer gives buyer a
card or paper designating particular gun he wishes to purchase along with a
unique transaction number. (5) Dealer places the gun in storage while waiting
period passes. (6) Buyer returns after waiting period and presents ID and
gun/transaction number card. (7) Dealer compares transaction number with his
copy to verify it and performs a new BIDS search on the buyer. (8) Buyer passes
second BIDS search and (if necessary) makes final payment on gun. (8) Dealer
gives the gun to the buyer, who verifies that it is the correct gun.
AGAINST BIDS AND RESPONSES
against BIDS by the federal government
will say BIDS would cost too much to implement. But, as noted above under the
section "A more detailed description of BIDS/Creating the BIDS
database", the core of the BIDS database, plus the system template and much
of the state mechanism required to expand and update it, already exists,
so much of the cost has already been paid out or earmarked for programs that can
be folded into BIDS.
funding for continued database mining of past records on a state level can be
provided over a period of three to five years, thus minimizing any financial
the value of maximizing computer use and minimizing human interactions in data
search transaction has been pointed out by the BATF itself, in its description
(from the Youth Crime Gun Interdiction Initiative report for 1999) of a gun
serial number tracing system it has developed called Access 2000. To quote from
2000: Firearms Industry Cooperation. Access 2000 is an ATF produced system
that allows a manufacturer, importer, or wholesaler to download a subset of
their firearms data into a stand-alone personal computer. ATF tracers can then
dial up and query on a specific serial number in order to obtain a disposition
on the firearm. Access 2000 also allows 24-hour access to manufacturer,
importer, or wholesaler records and is, therefore, particularly useful for
urgent traces. The system speeds the trace process from 1 to 3 days by
eliminating the step of calling or faxing the manufacturer, importer, or
wholesaler and waiting for the results of the crime gun's disposition, while
also reducing firearms industry trace-related costs."
any case, eliminating the grave danger to constitutional liberty represented by
current de facto registration systems is worthy of a far larger budget than what
BIDS will require. Funding will be insignificant compared not only to the
overall federal budget, but also compared to many federal programs that do
nothing to protect individual rights. Moreover, billions of U.S. taxpayer
dollars are literally given away to foreign nations every year. Again, by
comparison, the funding necessary to implement BIDS is tiny, and the purpose to
which it will be put is more proper, important, and defensible than giveaways to
other countries. (Please - no charges of xenophobia, racism, or isolationism. We
readily admit to wanting America's needs met first. In any case the real issues
are legality, fairness, and common sense.)
federal government will likely claim that, under BIDS, illegal retail gun sales
would be difficult to prevent, and monitoring of compliance by gun dealers would
argument does not withstand scrutiny. First, under NICS or BIDS, it is simple to
make a sale that skirts either system. For example, BIDS would not
prevent a dealer from buying guns from a distributor or manufacturer, then
ignoring the BIDS name search and selling them to a criminal. But neither does
NICS prevent a dealer from legally selling those same firearms to
someone who is not firearm disabled and who can then give, sell, rent, or loan
the guns to criminals or firearm-disabled persons. In fact, it happens
frequently - usually without the dealer knowing it. In other words, the net
result of such strawman sales (often incorrectly called "straw" sales
by the BATF) is the same under NICS or BIDS.
under either NICS or BIDS, it is easy for a dealer to buy a used gun from an
individual, not enter it into his inventory, and then sell it to someone else
without ever filling in any government papers.
undercover monitoring of compliance with BIDS is no different than with NICS.
Law enforcement techniques currently used to monitor compliance with NICS (e.g.
purchase "stings") are equally applicable under BIDS. (We will look
more closely at various infraction scenarios below.)
though the authors believe that many of the firearms disabilities in existence
today are unjustly or unconstitutionally imposed, it is still important to
remember that under either NICS or BIDS, the vast majority of dealers are happy
to help prevent firearms-disabled persons from buying firearms, or to assist law
enforcement in halting sales that wind up in criminal hands.
stopping the vast majority of illegal sales does not require a foolproof system
that will catch every last dealer who might otherwise be tempted to sell a gun
to a firearm-disabled person. NICS is certainly not such a system, and we doubt
one will ever exist. Under NICS and BIDS alike, what induces such dealers to
comply is the threat of punishment and lost livelihood. In reality, what
percentage of dealers is really willing to risk imprisonment and loss of
livelihood just to make a modest profit by selling a firearm to a prohibited
person? Only a very small fraction, of course.
last analysis bears on more general theory. In any society that is even
marginally free, citizens have countless opportunities every day to commit
crimes. Almost none of these crimes ever happen, not because we have devised
foolproof schemes to prevent each crime by denying a citizen's physical ability
to commit it, but because most citizens are decent people. Moreover, in a free
society, citizens should be presumed to be decent people.
of the rest of these potential crimes do not occur, again, not because of
advance denial of ability to commit each crime, nor because of any certainty
of capture and punishment, but rather because of the risk of capture and
the fear of punishment. For most types of crimes it is too costly, or
even impossible, to prevent each incident and catch all
perpetrators. What society does instead is catch enough criminals and punish
them harshly enough to deter others. Finally, other potential crimes do
not occur because those who would otherwise commit them are already behind bars.
dealers from making illegal sales.
points must be noted, including - for the sake of completeness - those presented
under other headings:
There is little incentive for a rational dealer to ever sell a gun to a
firearm-disabled person, as the risk of lost livelihood and/or other penalties
is not worth the resulting modest profit. The small annual number of dealers
convicted of this crime illustrates this fact. Both NICS and BIDS are equal in
providing this disincentive.
Neither NICS nor BIDS provides a way of determining after the fact that an
illegal unrecorded firearm sale has been made by a dealer. A dealer can
buy a used gun, never enter it into his records, and sell it to someone else
without filling in paperwork or performing a background check. Thus NICS and
BIDS are equal in this regard.
Under the NICS/GCA '68/Form 4473/DROS system, unless there is a particular
search for a particular gun's sales records, the only way to discover that a
dealer has made an illegal recorded sale to a firearm-disabled person is
to randomly examine his records of sale and run background checks on the
purchaser's name. But this will catch illegal sales only if the correct
information has been recorded on the sales records. For example, if a dealer has
falsely entered the name of a non-disabled person on his forms, running a
background check will turn up nothing amiss. As well, a firearm-disabled buyer
can arrange for a friend to purchase a gun for him, which leaves a
"clean" paper trail.
sum, the paperwork element of the NICS/GCA '68/Form 4473/DROS system does
provide a potential way to catch an illegal sale after the fact by using
paperwork, whereas BIDS does not. But this after-the-fact enforcement tool is
extremely inefficient regarding time and money resources and is rarely used to
identify actual illegal sales.
It would be simple for the government to test compliance with BIDS by inserting
false names into the BIDS database, and then trying to complete sales under
those names at retail outlets. As with NICS, the fear of being "stung"
minimizes illegal dealer sales. Thus NICS and BIDS are equal in the regard.
Under either NICS or BIDS, the only way to indisputably prove that a dealer has
knowingly made an illegal sale to a firearm-disabled person is to arrest that person while
in possession of the gun immediately after the sale, which sale has been
observed by reputable, disinterested witnesses or recorded on film. Jury
convictions based on records alone are easier to evade due to numerous
"reasonable doubt" arguments. Sworn testimony and facts provided by
accurate investigative work are more powerful, but neither NICS nor BIDS can
Considering all the above factors, BIDS is essentially equivalent to NICS with
respect to discouraging illegal dealer sales.
individuals from making illegal purchases.
points must be noted, including - for completeness - those presented above under
A stolen real ID (such as a driver's license) would pass either a
NICS check or BIDS search, providing (a) the person from whom the ID was stolen
was not firearm-disabled, and (b) the ID photo sufficiently resembled the thief.
Thus NICS and BIDS are essentially identical in this regard.
A forged fictitious person ID would pass the BIDS check if it were of
sufficiently high quality. But it would also pass a NICS check. The only
exceptions under either system would occur in states that required name/ID
number matches to be verified prior to gun sales. However, see point three
With respect to 1 and 2 above: (a) there is a great disincentive for a
firearm-disabled person to attempt purchasing a firearm from a dealer, no matter
whether NICS or BIDS were in place, because it enormously increases the risk of
arrest and punishment. Of course it does happen, but it is a small percentage of
attempted sales. And (b) even for career criminals there is little incentive to
use either forged or stolen identification to purchase a firearm from a dealer
because, in terms of anonymity and cost, it is far more advantageous to purchase
or rent a firearm on the black market.
speaking, the entire issue of using false identification, whether stolen or
forged, is of relatively minor consequence under either NICS or BIDS.
Should an illegal purchase be attempted under BIDS, whatever subsequent actions
are required by law under NICS (such as immediately informing the authorities)
could as easily be required and performed under BIDS.
with respect to preventing and discouraging individuals from making illegal
purchases, NICS and BIDS are essentially equal.
illegal private sales.
authors believe no person should ever be punished for selling a firearm to
someone he did not know to be firearm-disabled, any more than a person should be
punished, for example, for marrying a person who claimed not to be married but
in fact was.
it is reasonable, in general, to punish a person for selling a firearm to
someone he knew to be firearm-disabled. We say "in general" because
many firearms disabilities are unjustly or unconstitutionally imposed. For
example, it is unconstitutional for a person to be declared firearm-disabled
simply on the basis of a restraining order, or on the basis of the ex post
facto Lautenberg Act, which imposes new punishment for past crimes.
Moreover, it is unconstitutional to impose firearms disability to punish a
person for refusing to observe an unconstitutional restriction on their right to
keep and bear arms. Examples include states where it is a felony to carry a
concealed gun without a permit or to possess
a so-called "assault weapon" (which in most cases are nothing
more than semi-automatic rifles with features that have been commercially
available on rifles for about a century).
that regard, the authors believe that to prevent circumvention of the
Constitution, any loss of constitutional rights for any reason
should involve a presumption of innocence and trial by jury.
our purpose is not to endorse or extend existing infringements on firearms
ownership or transfer. Rather, it is to eliminate gun owner registration.
a person were concerned about the firearm-disability status of a potential
buyer, it would be easy enough to settle the matter. This is because the BIDS
system allows any person to run a name search on himself upon providing
acceptable ID. In the case described above, all the seller would have to do is
make the sale contingent upon a BIDS search. Buyer and seller would visit the
nearest gun dealer, the buyer would request a BIDS search for his own name, and
the dealer would tell the seller "yes" or "no" on the
in some places, people may sell firearms through a gun dealer intermediary,
though dealers may charge a substantial amount for this service (understandably,
since they make no profit and open themselves to technical paperwork
violations). Under BIDS, gun dealers would not be subject to paperwork
violations and could charge for the minor labor required to make the search.
non-compliance by states.
creating a complete BIDS database requires the cooperation of the states. But
state cooperation is also necessary to fully utilize NICS - and at this point
the FBI, which operates NICS, is not always getting such cooperation.
authors have not been able to verify the most recent figures, but according to
the US General Accounting Office, as of Oct. 1, 1999 (about one year ago)
"15 states had agreed to be full participants in NICS - that is, to
designate a state agency to conduct background checks on all firearms purchases.
Another 11 states agreed to be partial participants by conducting checks for
handguns, while the FBI conducts checks for long guns. In the remaining 24
non-participant states, the FBI conducts all NICS firearms background
order to obtain greater compliance with NICS, the GAO suggests
"[continuing] a program established under interim Brady that provides
criminal justice grants to states to improve the quality and completeness of
automated criminal history records" and "...to provide financial
incentives to states in order to increase the number of states that participate
bottom line: First, NICS is an incomplete system at this time, and may remain so
for reasons that the states consider important. Second, whatever methods the
federal government uses to induce states to participate in NICS may be equally
used to induce them to participate in BIDS. In fact, the authors believe that
states might actually be much more inclined to participate in BIDS than in NICS,
BIDS better guarantees the freedom, privacy, and safety of the states'
inhabitants. Many states do not share records with outside agencies because of
state laws regarding privacy. The typical example is medical records regarding
mental health or drug abuse, which can of course result in firearm disability.
BIDS is an open system, as accessible to the state as to the federal government,
whereas the final results of a NICS check are totally controlled by the federal
BIDS would eliminate the cost to states of maintaining a NICS Point Of Contact
office, staff, and resources, replacing it with at most, an office that simply
forwarded new entries to the BIDS database. We say "at most" because
states could set up a system whereby local jurisdictions within the state could
forward BIDS entries directly to the central database.
BIDS would eliminate the cost to states of operating their own background check
systems, since BIDS would contain the latest and most complete list of
firearm-disabled persons from their own state.
BIDS is equal to or better than NICS in this respect.
against BIDS by state governments
basic arguments that may be made by state governments against BIDS are exactly
the same as those made against NICS. They are:
States may not wish to spend funds necessary to contribute to the BIDS database,
and no state can be compelled by the federal government to spend funds on a
response: this is no more an impediment to BIDS than it is, or has been, to NICS,
with which most states currently comply. For states that resist cooperation for
reasons of cost, the federal government can use financial or other incentives to
increase cooperation, as noted in a recent GAO report. Thus BIDS and NICS are
equal in this respect.
that currently run their own background check system, once they are integrated
into BIDS, can essentially close down their own background check system. All
that needs to be maintained is the infrastructure that feeds updated information
on firearm-disabled persons to the BIDS database.
State laws may prevent certain databases or records from being shared with other
government entities, or may require them to be used only by certain state
agencies. For example, Virginia's mental health database may not be shared with
the federal government or other states, and within the state it is only
available to the Virginia State Police for firearm background checks.
response: Because the BIDS database is simply a list of disabled persons
and not a background check, a state does not have to share any public or
private records with any outside person or entity. All it has to do is report
the fact that a particular person is prohibited from purchasing firearms - it
does not have to give the reason. This is a tremendous improvement over NICS.
example, under NICS a person in Virginia who is firearm-disabled for mental
health reasons could move to another state, acquire a new driver's license or ID
from that state, and purchase a firearm without showing up in a NICS check since
his mental health records remain in Virginia. But if Virginia participated in
BIDS, it would have submitted this individual's name (along with identifying
particulars) to the BIDS database of firearm-disabled persons, which would be
available in every state. Thus there would be no violation of that person's
right to privacy regarding his mental health records; there would simply be a yes
or no (or the equivalent) in the BIDS database.
nothing in BIDS prevents a state from implementing its own internal firearm
purchase background check in addition to BIDS, though we hope the Supreme Court
abolishes all unconstitutional prerequisites to exercising a right. Perhaps,
however, BIDS legislation could to an extent circumscribe such state systems to
prevent registration. Finally, nothing prevents a state from modeling its own
verification system on BIDS, though of course that would be redundant.
against BIDS regarding solving crimes
Tracing firearms to licensed gun dealers.
authors believe that in the overall crime control picture, firearms tracing of
any kind is of extremely limited value. A look at the first year
"Operations Report" for NICS regarding the tracing of "crime
guns" provides insight into our opinion. This article can be found on the
internet at http://www.fbi.gov/programs/nics/nic1year.pdf.
reading government-generated articles about the value of gun tracing, it is
crucial to understand that a "crime gun" is not necessarily a gun used
in a murder or robbery or such. The BATF defines a "crime gun" as "any
firearm that is illegally possessed, used in a crime, or suspected to have been
used in a crime. An abandoned firearm may also be categorized as a crime gun if
it is suspected it was used in a crime or illegally possessed". This
definition clearly includes a substantial percentage of firearms that may never
have been used in a crime, except possibly the crime of illegal possession.
aside the above facts, BATF reports indicate that tracing guns back to licensed
dealers, and from there to the individual who bought the gun, is of some value
in the area of solving and prosecuting those illegal gun traffickers who buy
guns from retail dealers and then resell them on the black market.
the value of such tracing and prosecution in halting overall illegal
trafficking in firearms is extremely dubious. The simple reason: the more such
serial number tracing is used, the more black market gun traffickers will
protect themselves by various methods, such as developing alternative black
market firearm supply lines completely divorced from retail sales records (for
example international smuggling - greatly aided by NAFTA - or by trading in
stolen guns, or even manufacturing guns themselves). Finally, there is the
simple expedient of immediately obliterating the serial numbers of the guns they
of gun serial numbers is already an important tool in the criminal's bag of
tricks. In one 1998 case cited in the BATF's YCGII '99 report, out of 24
firearms bought by an undercover law enforcement agent, all but two had their
serial numbers obliterated. (Note: The authors are aware that current technology
can sometimes enable a crime lab to determine the obliterated serial number if
it was not punched or drilled out.)
any event, BIDS does allow a gun to be traced back to the dealer that sold it,
but not to the individual who bought it.
Currently special records are made
of multiple gun purchasers on the grounds that this will help curtail the black
market practice of buying guns from licensed dealers and then reselling them
illegally. These multiple purchaser records may be examined at will be the BATF.
Of course we believe this practice is unconstitutional on many grounds and that
the the longterm effect on such black marketeering is nil. However, some have
suggested that even BIDS include a provision that anyone who buys more than (for
example) 10 guns per month should have his identity recorded, but that gun
dealers be prohibited from revealing that person's identity except upon
production of a search warrant based upon probable cause.
The problem with such a
provision - aside from its unconstitutionality - is that it opens the door to
abuse. Immediately there will be a call to make the limit 5 guns a month, then 2
guns, because (as some senators and congressmen have already asked) "Who
needs to buy more than one gun a month?"
danger regarding such multiple-purchase registrations surfaced during the
writing of this article. It involves turning over the list of such purchasers to
private individuals. See NOTE 7
at the end.
for whatever crime control value it may have, BIDS will allow using serial
numbers to trace a firearm back to the last licensed dealer who stocked it and
Tracing firearms to individuals.
will prevent tracing firearms back to the last recorded individual
analyzing the potential effect of this fact on crime control, it should first be
noted that in 1999 (the most recent year for which the authors can find
information) the BATF was able to trace only 52% of submitted crime gun serial
numbers back to a retail purchaser. The reasons for this include: a problem with
the gun's serial number; records on gun unavailable; problem with importer name;
problem with manufacturer name; expiration of 20-year record retention
recent report (Youth Crime Gun Interdiction Initiative, 1999) gives several
ostensible examples of the value of the current extensive firearm recordkeeping
system. But these are isolated anecdotal cases that prove nothing in the
even the cases cited are dubious. For example, the report tells of a case in
which guns seized from a vehicle stop were identified as stolen by running them
"through NCIC records". But the NCIC information had nothing to do
with gun transaction records or with a gun owner database, so why was this case
even mentioned? The NCIC check simply revealed that these guns had been reported
by a dealer as having been stolen. This does not point out the value of a gun
owner registry; it points out the value of a national stolen firearms registry
that any police agency can instantly check, and to which any dealer or
individual can quickly and easily report a gun theft. (For additional items
related to the 1999 [BATF] Youth Crime Gun Interdiction Initiative [YCGII]
report, read NOTE 6 at the end of this
Furthermore no gun trace
can prove that the last registered purchaser of a gun was the perpetrator of a
crime or committed a crime using that gun. This person may have lost, sold, or
given away the firearm, or had it stolen or secretly borrowed from him. Even if
the owner were actually guilty, he could quite plausibly claim that any of these
things had occurred.
evidence clearly supports what common sense would predict: "According to
gun licensing theory, if a gun is left at the scene of the crime, licensing and
registration would allow a gun to be traced back to its owner. But police have
spent tens of thousands of man-hours administering these laws in Hawaii (the one
state with both rules), and there has not been even a single case where police
claim licensing and registration have been instrumental in identifying the
criminal. The reasons for this are simple. First, criminals very rarely leave
their guns at the scene of the crime. Second, would-be criminals virtually never
get licenses or register their weapons." (Lott, op. cit.)
sum, tracing firearms back to their last recorded purchasers is of no
significant or enduring value as regards crime control, nor has such value ever
been proven. Therefore, we do not believe gun purchaser/owner registration for
the purpose of gun tracing has any significant value as regards crime control.
when such firearms tracing - or rather the firearm owner registration that is
necessary for it to occur - is balanced against its effect in undermining the
Constitution, on loss of privacy, and in laying the groundwork for gun
confiscation, there is no contest: gun owner registration loses.
this country our wise, historical course has been to carefully guard the
individual's freedom, privacy, and constitutionally protected rights when
evaluating government actions, even when those rights inflict costs upon
society. Few would suggest abolishing the 4th Amendment, despite the dramatic
lowering of crime rates that would undoubtedly result. Nor would many argue for
abolishing the presumption of innocence or the right to jury trial in criminal
cases, despite the large effect that would surely have on crime as well. Yet, as
regards guns, those whose political agenda is at odds with the American system
have succeeded in steering us off this wise and historical course, despite the
fact that gun control not only does little or nothing to stop violent crime, but
in fact generally increases it. It is time to rectify that situation.
against BIDS regarding constitutionality
of firearm disabilities.
authors believe that many aspects of the current licensing laws, disability
laws, and gun purchase prerequisite laws (e.g. background checks) are
example, we believe that any punishment for a crime - and a civil rights
disability is certainly punishment - must be applied only via actual criminal
sentencing procedures, and not via some blanket law that actively or
retroactively affects whole classes of persons. The Gun Control Act of 1968 (GCA
'68) imposes gun rights disabilities on all felons and all persons dishonorably
discharged from the military. As well, the recent Lautenberg Act imposes new
punishment for past misdemeanors which have already been adjudicated. Both are
unconstitutional ex post facto laws, both are arguably bills of attainder, and
both are violations of the Fifth Amendment's prohibition on "deprived of
life, liberty, or property without due process of law". In a broad sense,
both also violate the Fifth Amendment's prohibition on being "subject for
the same offense to be twice put in jeopardy of life or limb".
of background checks.
the authors are advocating the adoption of BIDS as a replacement for the NICS/GCA
'68/Form 4473/DROS system, they believe that any mandatory background check or
name search prior to purchasing a firearm is unconstitutional. It is
unconstitutional in the same way that a mandatory background check or name
search prior to one's entering a church, synagogue, or mosque; or prior to
hiring an attorney; or prior to engaging in public speech would be
authors do not accept the position that firearms are special items that require
background checks prior to purchase. A few relevant points on this subject:
in 1999 for example, 34% of murder victims were killed by knives, blunt objects,
hands, feet, poison, fire, drowning, and other items that are not firearms.
Yet we do not require background checks or name searches prior to buying
or owning or using such items. Second, the American Medical Association
estimates that at least 100,000 Americans per year are killed by negligent
physicians, yet we do not require patients to undergo waiting periods or
background checks before seeing physicians. Nor do we ban low-billing
"Saturday night special" physicians, nor "high-capacity"
physicians who see "too many" patients, nor "assault
physicians" who look sinister or dress in black garb.
because it is a federal felony for school personnel to carry firearms to defend
themselves and their students, it would not be difficult in most locales for a
man to enter an elementary school classroom and kill most of the students with a
baseball bat. Yet no background check or name search is required for baseball
as we have repeatedly noted, felons with a modicum of common sense have little
incentive to purchase firearms in retail establishments, where (1) their
purchases may be recalled by witnesses, and (2) firearms are often more
expensive than on the black market. Such facts have not escaped the academic
community: "[M]ight licensing at least have allowed even more comprehensive
background checks and thus kept criminals from getting guns in the first place?
Unfortunately for...gun control advocates, there is not a single academic
study that finds that background checks reduce violent crime."
(Lott, op. cit., emphasis added)
authors believe that anyone who criticizes either NICS or BIDS as being an
unconstitutional prerequisite for exercising a right, or because the federal
government has no authority in this area, is absolutely correct. And
anyone who criticizes either NICS or BIDS because they accustom persons to such
unconstitutional "permission" protocols is also correct.
after much reflection the authors have come to believe that for the short term,
BIDS is by any standard a tremendous improvement over NICS. The current
background check system, NICS, should be viewed by gun owners as a dual
system: an unconstitutional background check system and a dangerously
unconstitutional registration system. We believe that the federal
government and its agencies, several state governments, and the larger
organizations in the mass communications media are working diligently to destroy
the right of Americans to keep and bear arms. Background checks are
unconstitutional, but by far the greater threat to Americans' right to
keep and bear arms is the compilation of a registry of gun owners.
that in mind, it will be much, much harder to convince voters and legislators
(and perhaps the Supreme Court, if it comes to that) to eliminate background
check and name search systems than it will be to convince them to eliminate the de
facto and de juris gun owner registration taking place right now
within those systems. Because the NICS/GCA '68/Form 4473/DROS system combines both
background checks and easily implemented registration, we will probably be
saddled with both evils for the foreseeable future if we continue with
the present system.
the NICS/GCA '68/Form 4473/DROS system continues for another five, ten, or
twenty years, the chances are that this much worse system will become
grudgingly accepted by most Americans. Meanwhile, the registry of living gun
owners will become more and more complete, enabling any attempt at confiscation
- whether implemented wholesale, or implemented piecemeal by type of gun, or
implemented piecemeal geographically - to be that much more effective.
we wish to point out that BIDS is not a compromise. In a compromise, both
parties give up something. BIDS is purely a gain for Americans when compared to
NICS. Not only are old protections regained while nothing is given up in terms
of the right to private arms, but new protections are gained as well. For
example, provisions prohibiting licensed dealers from keeping names or
providing identifying information about gun owners without court orders are
protections Americans have never had.
sum, as long as no other rights are traded off, it is far better to have a
system in place that gets rid of the worst part of the problem -
unconstitutional and dangerous registration - than to continue with a
system that inextricably combines both (the NICS/GCA '68/Form 4473/DROS system).
The fight to completely eliminate background checks or name searches can
continue regardless of which system is in place.
against BIDS regarding privacy
listed in the BIDS database could be assumed to have a prior conviction of some
sort, or to have some medical record or adjudged mental condition that prevents
legal purchase or possession of firearms, or to have been dishonorably
discharged from the military, etc. Easy access to such information, from which a
mental disability or a felony conviction, etc. might be inferred, could - if
made public - arguably damage an otherwise productive life and interpersonal
relationships and/or inhibit firearm-disabled people from finding employment or
improving their lives. With that in mind, it is important to note these things:
if the government wants criminal or medical information about someone,
for whatever reason, it can probably get it one way or another, and probably
with very little difficulty - regardless of whether NICS or BIDS is in place.
if any individual wants such information about another individual, then given
the time and money he can get probably get it, since criminal records for adults
are public. Information regarding the medical mental history of other
individuals may or may not be available, depending upon the situation and the
state, but such a potentially damaging history cannot be inferred from simply
viewing the BIDS database, since all BIDS reveals is whether or not a person
misuse of even the minimal information supplied by BIDS will be extremely rare
since it would be legally available only to gun dealers and law enforcement
personnel. As noted above, easy access to the BIDS database is greatly minimized
by the encryption and other security measures built into BIDS. Plus,
unauthorized distribution of any data from the BIDS database would be punishable
by law. Finally, the information available for misuse - that a person is
firearm-disabled, and nothing more - minimizes both the incentive to misuse it
in any way, as well as any effect it might have.
against BIDS by gun dealers
gun dealers might be tempted to think that the paperwork involved in NICS
protects them from false charges (being "set up" or
"framed") by the government.
response is this:
the extensive paperwork involved in NICS currently acts against the
dealer, because it introduces errors that either delay or derail legitimate
sales, or serve as reasons for the government to harass dealers and/or charge
them with technical violations.
this hard fact must be faced: if the government really wants to
"frame" a gun dealer, it can do it. It does not matter whether NICS or
BIDS or any other system is in place, it can do it. Government resources
necessary to frame a gun dealer (or to bankrupt him through litigation) are, for
all practical purposes, technologically, financially, and legally unlimited.
any government-controlled background check system can hope to do is make it
difficult for repeated or overt violations of the law to occur. We believe that
BIDS, as contrasted with NICS, is much more effective at accomplishing this in
ways that benefit individuals, the Constitution, and the country at large.
the elimination of the growing registry of American firearms owners, the
advantages of BIDS have been discussed at length above.
halting sales to firearm-disabled persons, BIDS would actually be more effective
than NICS. The FBI, which administers NICS, has admitted that states are far
better situated to perform background checks, and that many state records are
unavailable to the FBI because of state privacy laws (for example, people
adjudicated mentally incompetent or who have a medical history of drug abuse).
Because of this, (1) the NICS database does not contain a list of all
firearm-disabled persons; and (2) background checks are sometimes delayed beyond
the required time limit or are never thoroughly completed.
But under BIDS, no
personal records need be shared by states with the FBI. States need only submit
the full name, date of birth, and any available ID number of those who, for
whatever reason, are firearm-disabled. Thus the BIDS database could
theoretically legally contain every firearm-disabled person in the United
might argue that having states provide just the name, dates of birth, and ID
number of firearm-disabled persons would still be an invasion of privacy.
That may be true, but there is nothing stopping states from doing far more than
that right now, so it is not a valid argument against replacing NICS with
BIDS. Criminal records are generally public information, and specifically
whether or not a person has a firearm disability is public under NICS, in the
sense that it is reported back to firearm dealers who submit names for
background checks. Thus, the appearance of a name and date of birth on a list of
firearm-disabled persons tells a dealer no more than the result of a positive
NICS check: that, yes, this person is firearm-disabled. The reason for the
disability would never be known to the dealer. Nevertheless, it would be a crime
to purchase or sell firearms disability information for any purpose other than
BIDS checks or law enforcement.
this article proposes to replace the current background check system for
firearms purchases with an identity search in a list of firearm-disabled
persons. This eliminates the gun registration system inherent in the NICS
background check system and other BATF/GCA '68 provisions.
new Blind Identification Database System (BIDS) would replace the National
Instant Check System (NICS). If fully implemented, BIDS would be more
effective than NICS in halting firearm sales to firearm-disabled persons,
but BIDS would not have the terrible ingrained flaw of NICS, which is that it
facilitates the creation of a national registry of firearm owners.
would like to remind anyone comparing NICS with BIDS of these basic, crucial
points: Both NICS and BIDS utilize ID cards alone to initiate background
searches. Both NICS and BIDS depend upon the presumption that ID cards presented
to gun dealers are valid and correct. Both NICS and BIDS can be evaded by buyers
using stolen or forged IDs or by dealers circumventing the system entirely.
does not provide a truly Constitutional arrangement, i.e., no background check
prior to exercising a constitutionally protected right. We remind readers that
no background checks are required for purchasing cars, knives, flashlights,
tools, rope, or other items commonly used in committing crimes, none of which
items, unlike firearms, have constitutional protection regarding their ownership
does the BIDS database system alone eliminate related legislative
conflicts with the Constitution, such as GCA '68 and its later amendments, such
as the ex post facto Lautenberg Act. Nor does the BIDS database system
alone eliminate the de facto registration scheme that occurs when gun
dealers are forced by the federal government or state governments to record the
name of firearm buyers.
the supporting legislation that we have outlined is essential to the BIDS
does take a huge stride toward halting the ongoing rapid formation of a
national registry of firearm owners, which the authors perceive as the greatest
and most pressing danger to exercising the right to keep and bear arms, and
ultimately the most pressing danger to all the freedoms that Americans enjoy. It
also sets the stage for eliminating the other de facto registration
schemes that are currently functioning, such as state registries and "shall
issue" concealed carry permits (as opposed to Vermont's excellent and
constitutional presumptive issue firearm carry law). Furthermore, BIDS can
provide a model or an actual replacement for any state-run background check
would be best if we could completely eliminate any background check system or
other prerequisite for firearm purchases. Background checks do little to stop
crime and much to increase it. They enable the government to deny gun rights to
ever-increasing numbers of decent citizens by steadily increasing the number of
unconstitutional prohibited classes. But the American public is not yet
sufficiently educated on this subject to accept that, and we believe
accomplishing such education will realistically take at least several years - if
indeed it can ever be accomplished. This is not defeatism - because we do not
intend to stop pushing for that situation - but realism.
proposal is a call to put the dangers facing us into perspective - to prioritize
our battles. Still, BIDS is not equivalent to accepting the lesser of two evils,
as we already have both background checks and registration, while BIDS
restores critical protections Americans have lost and wins new protections we
never had. Nor should BIDS be dismissed as an incremental change, or one that
makes bad laws tolerable and durable, as might be alleged were there a plausible
chance of eliminating prior restraint and registration in one fell swoop.
from being incremental, BIDS would be a sea change, arguably reducing political
incentives to block further advance. If, indeed, one of the real, primary
goals of background checks is facilitating back-door and eventually front-door
gun owner registration, it follows that by eliminating registration BIDS
diminishes the incentive for anti-self-defense forces to fight for continued
prior restraint. And by forcing them to reveal their true goals, fighting and
winning the BIDS / registration battle may be a large part of winning other
battles as well.
sum, we are proposing a system that wipes out most, but not all, of an ongoing
evil in order that we may survive as free Americans to finally eliminate the
remaining portion of evil.
point out that for every argument that can be raised against BIDS - such as the
statistically negligible effect of firearm tracing in solving crimes - one must
balance against it the great benefits BIDS provides with respect to speed,
thoroughness, privacy concerns, constitutionality, and freedom.
remind the reader that BIDS is not a compromise, in which both parties give up
something. With BIDS, Americans give up nothing. Instead, they take a giant step
forward toward safety and freedom.
the details of BIDS can surely be modified and/or improved, we believe there is
no credible legal, financial, practical, or technical reason that this basic
system cannot be implemented.
any event, in order to overcome any political hurdles to ridding the
country of NICS (or as some disparagingly call it, "the national instant
registration system") it is our hope that the pro-self defense, pro-Second
Amendment, pro-Constitution community consider putting its support behind BIDS
or any other such "no records, no registration" system, until such
time as the public understands that any type of mandated permission prior to the
exercise of a right is damaging to our system of government and to our freedom
as human beings.
authors would appreciate input on any aspects of this name search system that we
have not considered and that would hinder its implementation, or anything which
would improve the system's operation. Please read the following NOTES before
sending any commentary.
authors wish to thank various individuals who have supplied information or have
critiqued this article or BIDS, including Larry Pratt of Gun Owners of America,
Harry Schneider of Pennsylvania Sportsman's Association, Alan Korwin of
Bloomfield Press, Angel Shamaya of KeepAndBearArms.com, Robert Buchholz of
Androcles, Inc., Jon Roland of The Constitution Society, David Knight of Applied
Computer Sciences, Erich Kroy, and John Kretz.
1: The Danger of Registration.
[Section A is adapted from Russ Howard's January, 2001 letter to the
Glasgow Sunday Herald.]
wisdom of strictly enforcing the 2nd Amendment and preventing registration is
history, criminal governments have been mankind's greatest mass murderers. In
the last century alone, registration and other gun controls are estimated to
have facilitated the murders of as many as 169 million people or more by leaving
them defenseless against criminal governments.
million. More victims by orders of magnitude than were murdered by conventional
criminals. Countries where gun control facilitated mass murder of civilians
include Turkey/Armenia, Germany, the Soviet Union, China, Cambodia, Uganda,
Guatemala, Bosnia, and Rwanda. Consider this paraphrased passage from David
Kopel's review of "Lethal Laws: Gun Control is the Key to Genocide",
by Jay Simkin, Aaron Zelman, & Alan M. Rice. (Jews for the Preservation of
Firearms Ownership, 1994):
authors may significantly underestimate the death count from genocide. Their
8-nation study uses conservative estimates to arrive at 56 million. University
of Hawaii professor R.J. Rummel, who researched the demographic evidence in much
more detail, puts total 20th-century victims of mass murders by governments at
169,198,000. If deaths of military combatants are included, it rises to
203,000,000. Rummel's book, Statistics of Democide: Estimates, Sources, and
Calculations on 20th Century Genocide and Mass Murder, includes regimes not
discussed in Lethal Laws...: Nationalist China (10,076,000; 1928-49); Japan
(5,964,000); Vietnam (1,678,000); N. Korea (1,663,000); Poland (1,585,000;
1945-48); Pakistan (1,503,000); Mexico (1,417,000; 1900-20); Yugoslavia
(1,072,000; 1944- 87); and Czarist Russia (1,066,000; 1900-17). There is no
evidence any of these deviated from the pattern described in Lethal Laws: the
preference to murder unarmed victims who were subject to gun controls."
of these victims were murdered by their own government - usually the same one
that passed the controls that left them defenseless; less frequently a
subsequent or invading government that took advantage of existing registration
and controls. Conventional criminals don't even register on the same scale.
take one example, Hitler was a leader in gun control, as were Lenin, Stalin,
Mao, and others. The 1938 Nazi Weapons Act - on which GCA '68 was modeled - was
specifically designed to leave Jews defenseless. In conjunction with earlier
German gun control laws, it worked.
did not have to be. In the Warsaw Ghetto Uprising, Jews armed with a handful of
small arms inflicted stunning damage on German forces. To the benefit of the
Allies, German forces were diverted from the war to quell it. The lesson is the
true meaning of the oath "Never Again," and no Jew who truly honors it
supports gun control.
European Jews and other minorities been armed and willing to resist, the
Holocaust either might never have happened, or it would at least have been
greatly minimized and the overall carnage of World War II greatly reduced as
well. Moreover, had other countries employed the Swiss model of a heavily armed
citizenry, the war would have been a relatively brief affair, had it occurred at
all, and would likely not have merited "World War" status.
The primary purpose of the Second Amendment, as explained in the Federalist
Papers and in other writings of the Founders, is to make certain that the
general populace always has the means to resist and overthrow a tyrannical U.S.
government, as well as to resist foreign depredations. If the U.S. government
has, or knows the location of, registries of even a substantial fraction of
American gun owners, then it possesses the means to nullify the intended effect
of the 2nd Amendment.
has been done in other countries in other times, a tyrannical U.S. government
can use such records to confiscate firearms and to arrest, imprison, or murder
actual or suspected firearms owners. While a constitutional U.S. government
(that is, the people working in it) might obey laws against keeping gun owner
registries, a tyrannical government undoubtedly would not.
firearm owner records kept by the U.S. government for ostensibly benign
purposes, such as "crime control", could be appropriated by a
succeeding tyrannical government and used for malevolent purposes. Similarly,
records kept secretly and illegally by individuals or agencies within a
generally benign government could, upon the ascension of a tyrannical
government, be brought to light and utilized malevolently.
that in mind, and keeping in mind that governments with authoritarian,
socialist, or collectivist agendas will generally do whatever they can to
increase the registration of gun owners, it is worth noting that under the
Clinton administration over 175,000 gun dealers quit doing business, and the
individual transaction records of these dealers are now in the hands of the
government. The total number of these records is now reported to exceed one
hundred million (100,000,000).
the right to arms as insurance against destruction of our other rights and the
horrors that would entail, it is reckless to assume that laws will stop
government from keeping gun owner registries. It is as foolish to assume that
governments never break laws as it is to assume that tyranny is impossible and
all rights will be respected at all times.
expect a sudden and obvious onset of tyranny in the United States is
unrealistic. It would likely be gradual, evidenced by passage of
unconstitutional laws, rising contempt for rights, and unconstitutional acts.
This growing tyranny might be concealed, or it might be flaunted to inure
citizens to a growing police state.
rise of tyranny would eventually move beyond Constitutional violations to
encompass statutory violations. While some would believe their tyrannical acts
lawful, or would rationalize them away, a systematic, elitist culture of
contempt for the law would grow among those charged with enforcing it.
a policy view, it is irrelevant whether or not the government is currently
keeping names (though it is). The responsible citizen should presume the
worst case. To the extent government possesses a registry of gun owners, or
knows where such lists are kept (i.e., gun dealers) it is a danger to liberty.
concerns not only led to the inclusion of the Second Amendment to the
Constitution, they undoubtedly led to the anti-record keeping provisions in the
Gun Control Act of 1968 - flawed as those provisions may be:
2: Private sector operation of
is no reason why the BIDS database and associated websites, etc. must be
operated directly by government. BIDS could be operated by subcontractors. Given
the non-competitive nature of government operations, as compared to the legal
and competitive pressure on a private entity to operate the site fairly,
honestly, and legally, and the authors feel that a private
subcontractor-operated BIDS system is the preferred option.
3: Alternative systems to BIDS.
alternative system that has been proposed is for states to put a firearms
disability mark on each driver's license and state ID card. The mark could
consist of a visible symbol or a code entered into a magnetic strip on the
driver's license. This could mitigate or eliminate the creation of a gun owner
registry that was compiled from new gun purchases, and could remove the federal
government from the daily business of verifying legal gun purchasers. However,
this alternative has its own problems.
problem with such a system is that driver's licenses and ID cards are physically
durable over a period of years. A person might still retain possession of a
"clean", or unmarked, license or ID even after his gun rights status
had changed. Even if individuals were required to turn in their old license upon
conviction of a firearm-disabling crime, such individuals could falsely claim to
have lost their old license, while in fact keeping it to use for purchasing
firearms. Thus there would still be a demand for gun dealers to make certain a
potential buyer's license or ID was current, and that would require instant
access to an up-to-date list of firearm-disabled persons, which would bring us
right back to a system such as the one we are proposing.
second problem is that such a system would require changing not only federal
law, but the laws of every state that wanted to utilize it.
third problem with this alternative system is that the firearm status mark could
be removed or forged onto a card, or that the information on the magnetic strip
could be erased, re-written, or added to with an electronic encoder.
fourth problem with a visible mark, because driver's licenses are commonly used
as identification at banks, motels, retail stores, etc., is that it would
constitute an invasion of privacy and/or a source of discrimination to the
holder of the license.
fifth problem is that a driver's license/ID system might lead to increased
demands for a federal ID card. This is little different from identity
requirements under totalitarian regimes past and present, which the authors
reject. True, some sort of official ID is required in our proposed system, but
it would not be one issued by the federal government, which has two advantages.
One, it avoids the creation of a new federal bureau and its accompanying
database of personal information, and two, should some less onerous and less
intrusive system of personal identification be developed, it allows the prompt
enactment of such a system on the state level, which is much easier to
accomplish than making systemic changes on the federal level.
4: State Overrides of BIDS.
the current contempt for the Constitution, certain states might attempt to
override this proposed system. In waiting-period states, for example, gun
dealers might be required to keep a list of buyer names during the waiting
period - even though there are ways to avoid this, such as giving buyers unique
transaction numbers and performing a new BIDS search after the wait. Other
states might require dealers to keep names indefinitely.
But such state systems
would, as noted, violate of the spirit of the Second Amendment and -- if the
incorporation doctrine as applied to other amendments is valid -- should be
ruled unconstitutional by the U.S. Supreme Court. To repeat: this proposed
system is meant to replace other blatantly unconstitutional systems and/or BIDS
overrides, whether imposed by state or federal government.
5: Underlying social/legal paradigms of Punishment.
a fuller understanding of the gun rights disability issue, there are two
distinct and opposing underlying paradigms that should be examined.
One: Punishment should terminate.
paradigm holds that anyone released from prison is considered to have paid his
debt to society and should be restored full Constitutional rights, including the
right to buy, sell, own, and use firearms. People who are arrested, charged, and
out on bond also have full rights, as they have not yet been convicted of any
could get around this general rule by enacting a provision of bond agreements
specifying that the bondee will not touch firearms pending trial, but the
Constitutionality of such a provision is debatable.
better case for denial of firearm rights exists regarding persons released on
parole, as they have not been completely "released" from the
penal/correctional system. But that raises the question of why people who cannot
be trusted with a gun have been released from prison under any circumstances,
since black market firearms are readily available even in countries that have
outlawed civilian gun ownership. It also raises the question of why people who
cannot be trusted with a gun are allowed access to other weapons such as fists,
feet, knees, elbows, foreheads, teeth, knives, hammers, axes, cars, poisons,
household chemicals that can be made into explosives, etc.
from a public safety viewpoint, the same argument can be made regarding those
people whom society deems imprudent to trust around firearms due to mental
disability.. To put it bluntly, shouldn't mentally disabled people be locked up,
too, in order to keep them away from weapons?
any event, if this "debt to society is paid" paradigm were to prevail
in its purest form, a verification system for gun purchases would be extremely
minimal. Every adult (adulthood being verified by an official ID of some sort,
such as a driver's license) who has not been medically and legally determined -
via full constitutional due process - to be mentally incompetent would be able
to buy, sell, or possess firearms. Ideally, even those who are denied firearm
rights due to mental incompetence would not be charged with any crime if they
attempted to buy a gun, nor charged with a crime for mere possession of one,
because their mental condition would obviate criminal intent. Nevertheless, the
attempt to make such a purchase would in some cases argue for
Two: Punishment may continue.
paradigm holds that certain crimes are so despicable and heinous that the
perpetrator, even though released from prison, should have certain
Constitutional rights denied (disabled) for a period of time or permanently. The
rationales for imposing these disabilities are in general that (1) the
ex-convict cannot be trusted, (2)
continued punishment for the crime is correct and desirable, (3) the
disabilities serve as a deterrent to others, or (4) all three. Again, the
question of why such criminals should ever be released into society is raised.
sentiment appears to strongly support paradigm two, and it is in fact the one
under which we live. It is not likely to change in the foreseeable future. Thus,
it is the paradigm within which we propose our system.
the view is that certain felons' rights may be denied after their release from
jail or prison, and that among those rights is the right to keep and bear arms,
then logically there should be a system to verify whether or not a potential
firearm purchaser has been forbidden to buy or possess firearms.
6: Tracing Firearms.
is a description of gun tracing from the 1999 (BATF) Youth Crime Gun
Interdiction Initiative (YCGII) report:
LIMITATIONS. With sufficient information about the crime gun, the NTC can
identify the first retail purchaser of crime guns. In most cases, it cannot
identify retail purchasers of crime guns resold by FFLs as used guns, or of
crime guns acquired as used guns from unlicensed sellers. As a result of the
structure of the firearms laws, an NTC trace usually stops at the first retail
purchase of the firearm recovered by law enforcement.
statement seems to blame the limited value of firearms tracing on "the
structure of the firearms laws". But the fact is, tracing a gun to its last
recorded owner cannot on its own prove guilt in a criminal case, because the
original owner may have lost, sold, or given away this firearm, or had it stolen
or secretly borrowed from him. Even if that were not the case, and the owner
were in fact guilty, he may plausibly claim that any of these things had
we find this statement in the same report:
of the important role of firearms trafficking investigations in the reduction
of violent crime, the International Association of Chiefs of Police, in a
program funded by the Department of Justice's Bureau of Justice Assistance, in
1999 continued to provide training at the NTC for police departments.
is absolutely no data that backs up the claims of firearms trafficking
investigations in reducing violent crime. It is a broad claim written in
specious "bureaucratese" that is unsupported by credible evidence or
is an another excerpt from this report YCGII '99 Report:
traced more than 64,000 crime guns recovered in 38 cities, advanced
investigations leading to the arrests of firearms violators and traffickers,
and provided law enforcement officials the best picture to date of the crime
43 percent of crime guns traced were recovered from individuals under 25
years old. Of those traced guns, approximately 9 percent were recovered from
juveniles (ages 17 and under), and 34 percent from youth (ages 18-24).
11 percent of traced guns were recovered from possessors who had purchased
those firearms from Federal firearms licensees. About 89 percent of traced
crime guns changed hands at least once before recovery by law enforcement.
transactions may be lawful or unlawful.
sold by licensed gun dealers during transactions involving the transfer of
more than one firearm accounted for 22 percent of guns traced in 1999.
guns, those manufactured in the U.S. from 1993-1999, account for more than
half of all crime guns traced in YCGII.
pistols are used more frequently in crime than other types of firearms, and
account for 50 percent of all traced guns.
enforcement recovered approximately 62 percent of all traced guns in the
state where the firearms were originally purchased from a licensed firearms
there are two major "south to north" trafficking patterns. The
first is on the East Coast, and flows from the South to Washington (DC),
Baltimore, Philadelphia and New York. The second pattern flows from South to
Memphis, St. Louis, and Chicago.
firearms, by manufacturer, caliber, and type, accounted for 24 percent of
all trace requests, while over 1,500 firearms and 87 calibers accounted for
the remaining crime guns.
each item above, the authors ask: So what? Such information might be interesting
to a statistician with a lot of extra time to waste, but of what significant
value is this information in controlling, preventing, and solving crimes and in
prosecuting criminals? Even if this information were of significant value, how
it was gotten must be balanced against its financial, privacy rights, and
constitutional costs, and we firmly believe it fails this test.
an overall look at the issue of registering firearms, which is directly
connected to the issue of tracing them, we offer the section below, taken from
the article "Rights, Registration, Licensing, and Firearms" by Brian
Puckett. Wording not related directly to BIDS has been edited out:
Identification. As noted above, there are two sub-purposes of owner
identification registration: ownership disputes and crime linkage. Crime
linkage can be further subdivided into two sub-categories, identifying stolen
items to return them to rightful owners and identifying items used to commit
Firearm Ownership Disputes. As regards ownership disputes, guns do not have
[great monetary value], so there is no compelling government interest in being
a third party in ownership disputes, any more than there would be for cameras,
laptop computers, and other portable and even more valuable items.
Firearm Crime Linkage. As regards crime linkage, we will examine the two
sub-categories: stolen guns and guns used in the commission of a crime.
consider stolen guns. Police almost never make an active attempt to locate a
stolen firearm. This is because of the universally held belief that an item so
small, so common, so relatively inexpensive, so easily hidden, so hard to
identify one from another at a distance, is not worth the effort and expense
of public funds to track down when stolen. In any case, a gun's registration
number can be removed or altered. Therefore registration - that is,
registering either a firearm's serial number or registering the fact that
someone owns a particular type of firearm - serves no purpose either in
preventing guns from being stolen or in the active recovery of stolen guns. By
the latter, I mean to distinguish it from passive recovery, which occurs when
police come across guns during arrests, property searches and the like.
for firearms used in the commission of crimes, it is impossible to read a
gun's serial number unless the gun is examined at very close range. The only
time such examination is possible for a gun used in a crime is when the gun is
left at the crime scene (statistically rare) or is found in a suspect's
possession (also comparatively rare, but it does occur). But guns found at
crime scenes may belong to the victim, so tracing its owner does nothing to
solve the crime. Even if the gun is found to be registered to a possible
suspect, it is not proof that this person committed the crime, or was even at
the crime scene. Guns are portable and operable by anyone, so the registree
could plausibly claim his firearm had been stolen and used by someone else.
for firearms found on or near a suspect, the only ways to directly associate
the firearm with the suspect and the crime are combinations of (1) witnessed
possession (2) fingerprints (3) rifling mark comparison of fired rounds. NOTE:
In none of these associations, which are the most useful in convicting
suspects for crimes, does registration play any part.
programs to register rifling marks will ultimately prove useless as: (1) the
factory rifling tool is used on multiple firearms, and attorneys will exploit
this fact in trial (2) rifling marks may be easily altered by running any
mildly abrasive product down a gun's barrel - or even part of the way down the
barrel (3) tracing rifling marks back to a particular original owner still
does not prove that this person - even if he still possesses the gun -
personally committed any crime.
sum, the value of the government knowing to whom that gun is registered must be
weighed against other rational and compelling reasons not to know.
7: Danger of multiple purchase records.
from a March 9. '01 news release from the Illinois State Rifle Assn.) On March
8, 2001, U.S. District Court Judge George Lindberg ordered the Bureau of Alcohol
Tobacco and Firearms (BATF) to release federal gun purchase records to lawyers
for the City of Chicago. The records in question consist of "multiple
purchase" forms filled out when one person legally purchases more than one
handgun during a five-day period from a single federally licensed dealer.
Lawyers for the City of Chicago demanded the release of the records to support a
lawsuit against gun manufacturers. In that lawsuit, Chicago contends that
firearm manufacturers encourage Chicago residents to commit crime by
"flooding" the city with handguns. Gun purchase records from all 50
states may now be handed over to Chicago's attorneys. There is no guarantee that
the records will remain confidential and certainly no guarantee that politicians
will not harass persons whose names appear on the released records.
8: About the authors.
Puckett has written for numerous firearm-related publications and magazines. He
is a co-founder and current president of the pro-gun rights media action
organization Citizens Of America (http://www.CitizensOfAmerica.org). An online
archive of his writings can be found at: http://www.KeepAndBearArms.com/Puckett
and at: http://www.GunTruths.com. He can be contacted at
Howard, past director of the National Rifle Association and co-founder of
Citizens Against Corruption, writes frequently on gun rights issues. An archive
of some of his writings can be seen at: http://www.KeepAndBearArms.com/Howard.
He can be reached at RussHoward@bigfoot.com.
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