BILL ANALYSIS                                                                                                                                                                                                    Ó







                          SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               J
                                                                     R

                                                                     1
          
                                                                      
                                                                      
                                                                      
          SJR 1 (Wolk)                                                
          As Introduced January 18, 2013
          Hearing date: February 26, 2013
          Uncodified
          SM:dl

                                FEDERAL FIREARMS POLICY  

                                       HISTORY

          Source:  Author

          Prior Legislation: AJR 45 (Feuer) - Res. Chapter 143, Statutes  
          of 2012
                       SJR 7 (Padilla) - Res. Chapter 63, Statutes of 2011
                       SJR 10 (DeLeon) - Res. Chapter 75, Statutes of 2012
                       AJR 56 (Frommer) - Res. Chapter 188, Statutes of  
          2004
                       SB 23 (Perata) - Chap. 129, Statutes of 1999
                       Roberti-Roos Assault Weapons Control Act of 1989 -  
          (Chapter 19, § 3, Stats. of 1989.)
                       
          Support: Brady Campaign to Prevent Gun Violence; Violence  
                   Prevention Coalition of Orange County

          Opposition:California Rifle and Pistol Association; National  
          Rifle Association







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                                         KEY ISSUE
           
          SHOULD A RESOLUTION BE ADOPTED URGING THE PRESIDENT AND THE  
          CONGRESS OF THE UNITED STATES TO PURSUE A COMPREHENSIVE FEDERAL  
          APPROACH TO REDUCING AND PREVENTING GUN VIOLENCE, AS SPECIFIED?



                                          
                                          
                                       PURPOSE

          The purpose of this bill is to adopt a resolution urging the  
          President and the Congress of the United States to pursue a  
          comprehensive federal approach to reducing and preventing gun  
          violence, as specified.

          Current Federal Law
          
           Current federal law  - The federal assault weapons law (the  
          Violent Crime Control and Law Enforcement Act, H.R. 3355, Pub.L.  
          103-322,) became effective on September 13, 1994, and banned the  
          possession of "assault weapons" and "large capacity ammunition  
          feeding devices," defined as a magazine capable of holding more  
          than ten rounds of ammunition, manufactured after that date.   
          That law expired in 2004 and has not been reenacted.

          Current California Law
          
           Current California law  regulates the manufacture, sale, and  
          possession of firearms and ammunition in the State of California  
          and requires that all transfers of firearms take place by or  
          through a licensed firearms dealer, except as specified.  (Penal  
          Code § 16000, et seq.)

           Current law  contains legislative findings and declarations that  
          the proliferation and use of assault and .50 BMG rifles poses a  
          threat to the health, safety, and security of all citizens of  
          California.  (Penal Code § 30505.)





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           Current law  states legislative intent to place restrictions on  
          the use of assault weapons and .50 BMG rifles and to establish a  
          registration and permit procedure for their lawful sale and  
          possession.  (Penal Code § 30505.)

           Current law  defines an "assault weapon", as specified.  (Penal  
          Code §§ 30510 and 30515.)

           Current law  defines a ".50 BMG rifle and cartridge", as  
          specified.  (Penal Code §§ 30525 and 30530.)

           Current law  makes the manufacture, distribution, transportation,  
          importation, sale, gift or loan of an assault weapon or a .50  
          BMG rifle a criminal offense.  (Penal Code § 30600.)  

           Current law  makes the possession of assault weapons a criminal  
          offense, subject to certain exceptions.  (Penal Code § 30605.)  




           Current law  defines a "large-capacity magazine" as "any  
          ammunition feeding device with the capacity to accept more than  
          10 rounds, but shall not be construed to include any of the  
          following: 

                 A feeding device that has been permanently altered so  
               that it cannot accommodate more than 10 rounds. 
                 A .22 caliber tube ammunition feeding device. 
                 A tubular magazine that is contained in a lever-action  
               firearm."

          (Penal Code § 16740.)

           Current law  provides that, except as specified, commencing  
          January 1, 2000, any person in this state who manufactures or  
          causes to be manufactured, imports into the state, keeps for  
          sale, or offers or exposes for sale, or who gives, or lends, any  
          large-capacity magazine is punishable by imprisonment in a  
          county jail not exceeding one year or in the state prison for 16  




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          months, two or three years.  (Penal Code § 32310.)

           Current law  provides that, upon a showing that good cause  
          exists, the Department of Justice may issue permits for the  
          possession, transportation, or sale between a licensed firearms  
          dealer and an out-of-state client, of large-capacity magazines.   
          (Penal Code § 32315.)

           Current law  provides that, except as specified, any  
          large-capacity magazine is a nuisance and is subject to an  
          injunction against its possession, manufacture or sale, and is  
          subject to confiscation and summary destruction.  (Penal Code §  
          32390.)

           This bill  would make the following findings and declarations:

          WHEREAS, The Sandy Hook Elementary School mass shooting in  
          Newtown, Connecticut, which resulted in the death of 20 children  
          and 6 adults, demonstrated the need for stronger laws to prevent  
          gun violence; and 

          WHEREAS, Numerous factors contribute to the occurrence of mass  
          shootings, including unregulated access to assault weapons and  
          assault magazines, insufficient background checks, and needed  
          improvements to our mental health system, among others; and 

          WHEREAS, Semiautomatic assault weapons designed with military  
          features allow for the rapid fire of potentially large numbers  
          of bullets, and are distinguishable from standard sporting  
          firearms by features such as the ability to accept a detachable  
          magazine, pistol grips, and folding or telescoping stocks; and 

          WHEREAS, Semiautomatic assault weapons are frequently used in  
          mass shootings, including the 1993 101 California Street  
          shooting in San Francisco that involved two TEC-9 semiautomatic  
          handguns, and the recent Aurora, Colorado, shooting that  
          involved an AR-15 style semiautomatic assault rifle with a  
          100-round ammunition drum; and 
          WHEREAS, The United States Supreme Court has affirmed once and  
          for all that Americans have a right to keep and bear arms.  




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          However, as conservative justice Antonin Scalia outlined, the  
          District of Columbia v. Heller decision does not prohibit laws  
          forbidding firearms in places such as schools or regulation of  
          unusually dangerous weapons, nor does it restrict laws  
          prohibiting felons and the mentally ill from carrying guns; and 

          WHEREAS, The National Firearms Act of 1934 regulates the  
          possession and transfer of fully automatic machine guns through  
          background checks, registration, and excise taxes, but  
          individual states are able to enact their own stronger gun  
          legislation and regulations which may or may not be similar to  
          other states; and 

          WHEREAS, Seven states, including California, have enacted laws  
          strictly regulating the possession, manufacture, and transfer of  
          assault weapons; and

          WHEREAS, Because our borders are porous and only a small number  
          of states regulate assault weapons and high-capacity assault  
          magazines, states, like California, that take steps to protect  
          their communities from these weapons are vulnerable to criminals  
          who use those weapons without a comprehensive federal approach  
          to curb gun violence; and 

          WHEREAS, It is estimated that 40 percent of firearm transfers  
          are completed without a federal background check, including the  
          transfer of semiautomatic firearms from a private collection;  
          and 

          WHEREAS, California requires background checks for all firearms  
          sales and transfers through various means; and 

          WHEREAS, Nine categories of individuals are prohibited from  
          purchasing and possessing firearms, including the dangerously  
          mentally ill; and 

          WHEREAS, Mental health records are reported by the state and  
          imported into the National Instant Criminal Background Check  
          System, but currently many state and federal agencies are not  
          fully participating in this system; now, therefore, be it 




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          Resolved by the Senate and the Assembly of the State of  
          California, jointly, that a comprehensive federal approach to  
          reducing and preventing gun violence is needed to protect the  
          Second Amendment rights of law abiding citizens while ensuring  
          that our communities are safe from future mass shootings; and be  
          it further 

          Resolved, That the Legislature urges the President and the  
          Congress of the United States to promptly place under the scope  
          of the National Firearms Act generically defined assault  
          weapons, as now is the case with California, and high-capacity  
          assault magazines; and be it further 

          Resolved, That a universal background check through the National  
          Instant Criminal Background Check System should be required for  
          the transfer of all firearms; and be it further 

          Resolved, That the President of the United States should take  
          steps to ensure all states and applicable federal agencies are  
          reporting all necessary records to the National Instant Criminal  
          Background Check System; and be it further 

          Resolved, That the Secretary of the Senate transmit copies of  
          this resolution to the President and Vice President of the  
          United States, to the Speaker of the House of Representatives,  
          to the Majority Leader of the Senate, to each Senator and  
          Representative from California in the Congress of the United  
          States, and to the author for appropriate distribution. 

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.  





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          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.   ROCA necessitated many hard  
          and difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order to reduce the state's prison population to  
          137.5 percent of design capacity.  The State submitted in part  
          that the, ". . .  population in the State's 33 prisons has been  
          reduced by over 24,000 inmates since October 2011 when public  
          safety realignment went into effect, by more than 36,000 inmates  
          compared to the 2008 population . . . , and by nearly 42,000  
          inmates since 2006 . . . ."  Plaintiffs, who oppose the state's  
          motion, argue in part that, "California prisons, which currently  
          average 150% of capacity, and reach as high as 185% of capacity  
          at one prison, continue to deliver health care that is  
          constitutionally deficient."  

          In an order dated January 29, 2013, the federal court granted  
          the state a six-month extension to achieve the 137.5 % prisoner  
          population cap by December 31st of this year.  

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unsettled.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  




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          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; whether a measure proposes  
               penalties which are proportionate, and cannot be achieved  
               through any other reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.


                                      COMMENTS

          1.  Need for This Bill

           According to the author:

               Assault weapons are a class of semiautomatic firearms  
               designed with military features that allow those  
               weapons to spray large amounts of ammunition quickly  
               and accurately. These weapons are frequently used in  
               mass shootings, including the 1993 California Street  
               attack in San Francisco and the 2012 shooting in  
               Aurora Colorado. Furthermore, the recent tragedy at  
               Sandy Hook Elementary School in Newtown, Connecticut,  
               demonstrates the need for stricter controls on assault  
               weapons and high-capacity magazines.

               Seven states, including California, have enacted laws  
               strictly regulating the making, possession, and  
               transfer of assault weapons. Without a comprehensive  
               federal law, states that take steps to protect their  
               communities from assault weapons remain vulnerable to  
               criminals who use those weapons. The National Firearms  
               Act provides a framework for Congress and the  
               President to pass new legislation regulating  




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               generically defined assault weapons and high capacity  
               magazines.

               In addition, while California requires background  
               checks for all firearms sales and transfers it is  
               estimated that 40% of firearm transfers are completed  
               without a federal background check. The National  
               Instant Criminal Background Check System (NICS) which  
               compiles mental health records from states could be  
               more fully utilized by states and federal agencies  
               that are not currently participating and provide a  
               universal background check for all firearms transfers.

          2.  Current Federal Law Regarding Background Checks  

          The Brady Handgun Violence Prevention Act of 1993 (Pub. L. No.  
          103-159, 107 Stat.1536 (1993), codified as amended at 18 U.S.C.  
          § 921 et seq.) requires a criminal history background check on  
          any person who attempts to purchase a firearm from a Federal  
          Firearms Licensee (FFL). 

          The Brady Act prohibits the transfer of a firearm to a person  
          who:

                 is under indictment for, or has been convicted of, a  
               crime punishable by imprisonment for more than 1 year
                 is a fugitive from justice
                 is an unlawful user of, or addicted to, a controlled  
               substance
                 has been adjudicated as a mental defective or committed  
               to a mental institution
                 is an illegal alien or has been admitted to the United  
               States under a nonimmigrant visa
                 was dishonorably discharged from the U.S. Armed Forces
                 has renounced U.S. citizenship
                 is subject to a court order restraining him or her from  
               harassing, stalking, or threatening an intimate partner or  
               child
                 has been convicted of a misdemeanor crime of domestic  
               violence




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                 is under age 18 for long guns or under age 21 for  
               handguns.

          However, unlike under California law, there is no federal  
          requirement that all firearms transactions be conducted through  
          a licensed dealer. The result is that many firearms are sold in  
          the "secondary market" without any background check on the buyer  
          and no official record of the transaction. 

               The real numbers aren't known because the Bureau of  
               Alcohol, Tobacco, Firearms, and Explosives does not  
               track how many guns are sold online or how many of  
               them are used in crimes. But gun control advocates  
               suspect the market is large. Jon Lowy, director of the  
               legal action project of the Brady Center to Prevent  
               Gun Violence, says, "The last figure we have is 40  
               percent of gun sales take place without a background  
               check. That figure is probably low, because it dates  
               from before the advent of the thriving internet  
               market. Today the internet provides a mechanism to  
               facilitate countless private sales without a  
               background check, no questions asked."

          (Mencimer, Want to Buy a Gun Without a Background Check?  
          Armslist Can Help, Mother Jones (February 1, 2013.) 

          3.  Current Federal Law May Impede Firearms Trafficking  
          Prosecutions  

          Researchers studying the causes of gun violence and the most  
          effective ways to reduce it have found that deficiencies in  
          federal law make it more difficult to uncover and prosecute  
          illegal gun trafficking.

               The existing federal legal framework on firearms  
               commerce actually impedes effective action. In  
               particular, prosecuting gun traffickers is remarkably  
               difficult. Since the telltale paperwork is not  
               available for unregulated transactions in the  
               secondary market, unlicensed dealers illegally engaged  




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               in the business of selling firearms can avoid  
               prosecution by claiming that they were selling only a  
               handful of firearms from their private collection.  
               Corrupt FFLs who illegally divert firearms face very  
               small penalties. The McClure-Volkmer Firearms Owners  
               Protection Act reduced most of these record-keeping  
               violations from felonies to misdemeanors in 1986.  
               Straw purchasers are also difficult to prosecute,  
               given various legal loopholes. As a result, US  
               attorneys typically prosecute gun traffickers on  
               charges unrelated to trafficking such as "felon in  
               possession" or drug trafficking. 

               The enforcement of laws against gun trafficking is  
               also hindered by the rather cumbersome procedure ATF  
               is forced to use to trace firearms. The limits of  
               current record-keeping procedures thwart routine  
               firearms tracing of secondhand firearms sold by  
               licensed dealers and prevent ATF from identifying  
               straw purchasers and scofflaw dealers who divert  
               secondhand firearms. Trace data also provide ATF  
               investigators with little support in examining the  
               robust trade in secondhand firearms on the secondary  
               market. Modest statutory changes in the system for  
               tracking firearm purchases and sales could make a big  
               difference in developing an effective supply-side  
               strategy. For example, a requirement for licensed  
               dealers to report serial numbers for all sales to ATF  
               would greatly facilitate the tracing process without  
               creating a central registry of gun owners.30 A  
               requirement that all secondary market transaction pass  
               through federally licensed dealers-with the same  
               screening and paperwork provisions as if the gun were  
               being sold by the dealer-would be useful in a variety  
               of ways, including in detecting gun traffickers.  
               However, both proposals would likely be vigorously  
               challenged as infringing on the rights of lawful gun  
               owners and as violating FOPA, which prohibits ATF from  
               establishing any national system of gun registration.





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          (Pierce, Braga, Wintemute, Dolliver, New Approaches to  
          Understanding and Regulating Primary and Secondary Illegal  
          Firearms (January 2013) (Citations omitted.)  
          (  https://www.ncjrs.gov/pdffiles1/nij/grants/241021.pdf  )

          4.  The Federal Assault Weapons Ban Has Been Allowed to Expire  
                                                                      
          The Federal Assault Weapons Ban was passed as a portion of the  
          Violent Crime Control and Law Enforcement Act on September 13,  
          1994.  The Act specified which weapons were classified as  
          assault weapons, which included nineteen separate models.  The  
          Act defined features which classified specified semi-automatic  
          rifles, pistols, and shotguns as assault weapons.  The Act was  
          limited to semi-automatic weapons only as fully automatic  
          weapons were addressed in earlier legislation passed in 1934 and  
          1986.  The Act also banned large capacity ammunition feeding  
          devices, or high capacity magazines.  The Act expired in 2004  
          and was not reenacted.  

          Like the assault weapons ban, whether citizens should be allowed  
          to own high-capacity magazines is one of the contested issues in  
          the debate over what constitutes reasonable gun regulation.

               "Anyone who's thought seriously about armed  
               self-defense knows why honest Americans - private  
               citizens and police alike - choose magazines that hold  
               more than 10 rounds. Quite simply, they improve good  
               people's odds in defensive situations," Chris W. Cox,  
               the executive director of the National Rifle  
               Association's legislative institute wrote in a piece  
               posted online. He called the ban a "dismal failure."


               The federal prohibition on high-capacity magazines and  
               assault weapons was spurred in part by the 1989 mass  
               killing in Stockton, Calif. Patrick Edward Purdy, a  
               mentally unbalanced drug addict, fired 110 rounds from  
               an AK-47 into a schoolyard, killing five children and  
               wounding 29 others and a teacher. Purdy used a  
               75-round drum magazine and a 35-round banana clip, one  




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               of four he carried.  


          (David S. Fallis, Data Indicate Drop in High-Capacity Magazines  
          During Federal Gun Ban, Washington Post, January 10, 2013,  
          http://www.washingtonpost.com/investigations/data-point-to-drop-i 
          n-high-capacity-magazines-during-federal-gun-ban/2013/01/10/d56d3 
          bb6-4b91-11e2-a6a6-aabac85e8036_story.html)

          According the Washington Post, it conducted an analysis of data  
          taken from one jurisdiction, the State of Virginia, "During the  
          10-year federal ban on assault weapons, the percentage of  
          firearms equipped with high-capacity magazines seized by police  
          agencies in Virginia dropped, only to rise sharply once the  
          restrictions were lifted in 2004[.]"  

                                   * * * * * * * *

               "I was skeptical that the ban would be effective, and  
               I was wrong," said Garen Wintemute, head of the  
               Violence Prevention Research Program at the University  
               of California at Davis School of Medicine. The  
               database analysis offers "about as clear an example as  
               we could ask for of evidence that the ban was  
               working." 



          (Fallis, supra)


          5.  Argument in Support  


          The Brady Campaign to Prevent Gun Violence states:



               The California Chapters of the Brady Campaign to  
               Prevent Gun Violence is a grassroots organization  




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               working to reduce firearm violence.  There are Brady  
               chapters throughout the state, many of whose members  
               have lost a loved one to gunfire.  In furtherance of  
               our goal to reduce firearm crime, injury, and death in  
               our communities, the California Brady Campaign  
               Chapters strongly support SJR 1.

               Senate Joint Resolution 1 urges the President and  
               Congress of the United States to develop a  
               comprehensive federal approach to reducing and  
               preventing gun violence, including requiring a  
               universal background check for the transfer of all  
               firearms.  The measure would additionally urge the  
               President to take steps to ensure all states and  
               applicable federal agencies are reporting all  
               necessary records to the National Instant Criminal  
               Background Check System.  

               California has the strongest firearm laws in the  
               nation, including a background check for every gun  
               sale.  The data shows that, between 1990 and 2010,  
               California reduced its firearm mortality rate by 52  
               percent - a 24 percentage point greater reduction that  
               the rest of the nation.  Although California has made  
               real progress in reducing the rate of firearm injury  
               and death, in 2009, over 6,000 people were shot in  
               California and nearly 3,000 died.  California is  
               impacted by weak federal gun laws and the illegal guns  
               coming into California from neighboring states.   
               Persons who cannot pass a background check in  
               California can purchase a gun through a private party  
               transfer in other states - with no questions asked.  

               The shooting of 20 first graders at Sandy Hook  
               Elementary School, the killing of seven people at a  
               Sikh temple in Wisconsin, and the shooting of seventy  
               people in a movie theatre in Colorado should be  
               unacceptable in a civilized society.  The killing of  
               thirty-two people by gunfire every day in our country  
               demonstrates the need for strong national firearm  




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               laws.


               The Brady Campaign to Prevent Gun Violence believes in  
               a comprehensive approach to reducing gun violence in  
               our nation, including both policy to keep guns out of  
               the hands of criminals and other dangerous people and  
               public health and safety programs.   We support  
               universal background checks and bans on assault  
               weapons and large capacity magazines.  Accordingly, we  
               support and appreciate your introduction of SJR 1.

































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          6.  Argument in Opposition  


          The National Rifle Association states:



               The National Rifle Association supported the  
               establishment of the National Criminal Instant  
               Background Check System (NICS) [1], and we support it  
               to this day.  At its creation, we advocated that NICS  
               checks be accurate; fair; and truly instant.  The  
               reason for this is that 99% of those who go through  
               NICS checks are law-abiding citizens, who are simply  
               trying to exercise their fundamental, individual Right  
               to Keep and Bear Arms.

               Since 1986, those engaged in the business of selling  
               firearms for livelihood and profit have been required  
               to have a Federal Firearms License (FFL).  All retail  
               sales of firearms currently require a NICS check, no  
               matter where they occur.

               Regarding the issue of private firearms sales, it is  
               important to note that since 1968, it has been a  
               federal felony for any private person to sell, trade,  
               give, lend, rent or transfer a gun to a person he  
               either knows or reasonably should know is not legally  
               allowed to purchase or possess a firearm.

               According to a recent General Accounting Office study,  
               as of 2011 23 states and the District of Columbia  
               submitted less than 100 mental health records to NICS;  
               17 states submitted less than ten mental health  
               records to NICS; and four states submitted no mental  
               health records to NICS.

               A common misrepresentation is that criminals obtain  




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               firearms through sales at gun shows. A 1997 Bureau of  
               Justice Statistics survey of state prison inmates who  
               had used or possessed firearms in the course of their  
               crimes found that 79 percent acquired their firearms  
               from "street/illegal sources" or "friends or family."  
               Only 1.7 percent obtained firearms from anyone (dealer  
               or non-dealer) at a gun show or flea market.

               In 2010, the FBI denied 72,659 NICS checks out of a  
               total of 14,409,616.  But only 62 of these cases were  
               actually prosecuted, and only 13 resulted in a  
               conviction.

               While the term "universal background checks" may sound  
               reasonable on its face, the details of what such a  
               system would entail reveal something quite different.   
                A mandate for truly "universal" background checks  
               would require every transfer, sale, purchase, trade,  
               gift, rental, or loan of a firearm between all private  
               individuals to be pre-approved by the federal  
               government.  In other words, it would criminalize all  
               private firearms transfers, even between family  
               members or friends who have known each other all of  
               their lives.

               According to a January 2013 report from the U.S.  
               Department of Justice's National Institute of Justice,  
               the effectiveness of "universal background checks"  
               depends on requiring gun registration. In other words,  
               the only way that the government could fully enforce  
               such a requirement would be to mandate the  
               registration of all firearms in private possession - a  
               requirement that has been prohibited by federal law  
               since 1986.
                                   ***************