The Gongwer Blog

March 26, 2023 Through April 1, 2023

Background Checks Debated As Safety Tool, Excessive Registration

By Ben Solis
Staff Writer
Posted: March 27, 2023 9:20 AM

Bills with public support creating universal background checks on all firearm purchases are racing through the Legislature in the wake of two mass shootings in Michigan, but the legislation is under criticism from Republicans and gun rights activists who say the bills go further than claimed and lack clear enforcement details.

The bills passed their respective legislative chambers this month, moving the bills in a larger package of firearms regulations closer to the governor's desk. For Democrats and gun control advocates, the legislation is a long-sought common-sense change designed to prevent people without the legal right to purchase a firearm from doing so.

But questions remain on how the bills will act as improvements to the state's background checks system – all firearms purchased from a federally licensed dealer in Michigan require a background check already. Some gun rights activists and Republican legislators say parsing the bills has been difficult because they focus on licensure and registration as a means to effectuate background checks. One of their biggest criticisms of the legislation is it would require all firearms to be registered going forward, a major expansion of the requirement now only for pistols.

There's also questions on how the state would be able to appropriately enforce an added requirement for purchasing licenses on long guns since the bill would only affect future purchases after the implementation date, and not the millions of long guns currently owned by Michigan residents.

Still, Democratic members of the House and Senate – each voting in favor of the bills when they passed – have said that a universal background checks system was a vital measure in keeping guns out of the hands of bad actors who could turn those guns against others resulting in injury, death and more importantly mass deaths.

The party in power in Lansing also believes that inalienable rights come with a high degree of responsibility, and that by creating a framework where every firearm sold must be licensed creates a pathway to automatic or universal background checks on all firearms.

In an interview with Gongwer News Service, Rep. Kelly Breen (D-Novi), the House Judiciary Committee chair, said the entire idea behind background checks is to curb illegal sales and gun violence, and that she and her colleagues do not want to disarm or take away the rights of average citizens to purchase or keep arms. She did say, however, that HB 4138 and SB 76 would amount to a mere inconvenience for future gun owners.

"What we're talking about here is tantamount to an inconvenience. It is not meant to keep firearms out of the hands of law abiding citizens, but also with personal rights come personal responsibilities. And a vast majority of the gun owners that I know, including members of my own family, they have no problem whatsoever making sure that one their firearms are stored safely to keep them out of the hands of kids," Ms. Breen said. "Most 'good citizens with guns' also undergo safety and training courses. If you want a CPL, you have to (train) but if you don't have a CPL and you just want to own a gun, fine, you're not required to, but I would hope that a responsible gun owner would take the time to understand that with that personal right comes responsibility with how to know and handle those firearms correctly. That's what we're asking for, and is tantamount really to inconvenience."

HB 4138 and SB 76, sponsored by Rep. Jaime Churches (D-Wyandotte) and Sen. Kevin Hertel (D-Saint Clair Shores), passed in their respective chambers this month. Both chambers will have to pass the other's respective bills before they can reach the governor's desk for approval. That could come with a flurry of additional hearings with hours of testimony seen with earlier movement on the bills, giving advocates and opponents another chance to lobby lawmakers to either pass or vote against them.

Overall, both bills would create a system much like the one Michigan requires for the carrying of a concealed pistol, which necessitates purchasers and owners to have their weapons licensed. One of the steps toward licensure is a background check. Other guns, like the long guns that have taken center stage in the gun control debate, do not currently require licensure or registration to purchase or own.

Ms. Breen said that bills would institute the licensure and registration requirement on pistols across the spectrum of firearms bought and sold in Michigan, and by proxy requiring background checks on those sales. The bills, she said, would also the require the same on private sales, which are currently left unregulated under state law.

More specifically, Mr. Hertel's bill in the Senate would amend the Handgun Licensure Act to prohibit an individual from purchasing or acquiring a firearm that was not a pistol without a license, specifying that the prohibition would not apply to the purchase or acquisition of a firearm that occurred before the bill's effective date.

It would also apply qualifications a person must have to apply for a pistol licensee to the qualifications that person would need to possess for all firearm licensure; specify exemptions, procedures, and penalties prescribed in the act for pistol licensure to all firearm licensure; and exempt an individual purchasing a firearm other than a pistol who had a federal National Instant Criminal Background Check System (or NICS) check performed by a federally licensed firearms dealer within five days of the purchase.

Mr. Hertel's bill would further modify certain circumstances under which a person would not have to obtain a license to possess a pistol or firearm.

Ms. Churches' bill reads along the exact same lines, however, and the adopted substitute stated that current long gun owners would be grandfathered in to ensure that long guns don't need to be retroactively registered.

The current nationwide purchase system requires federally licensed firearms dealers to initiate background checks on the purchaser prior to a sale. As mentioned, the nationwide system does require the same on private sales, data provided by Giffords Law Center shows, but provides states with an option of serving as a point of contact and allows them to conduct their own background checks. Those checks have access to state and federal records and databases. States can also opt to have the FBI conduct the check using only the NICS system, which does not always include state data.

Michigan is a partial point-of-contact state for the NICS database. Background checks requested by licensed dealers are processed directly through the FBI, Giffords Law Center states, which enforces the federal purchaser prohibitions referenced in FBI processes. If a handgun seller is not a federally licensed dealer, Michigan requires the purchaser to obtain either a valid handgun purchase license or a license to carry a concealed handgun, according to Michigan law.

Handgun purchase licensees are subject to a background check as part of the licensing process for each purchase license and for each handgun purchased through the Department of State Police, as directed by statute.

Concealed pistol licensees only have to submit to a background check once every five years, state law dictates, at the time of renewal of their concealed carry license.

In Michigan, a law was enacted in 2015 to require law enforcement to conduct background checks through the state's Law Enforcement Information Network and the FBI's NICS database.

That said, the Giffords Law Center notes that federal law does not require dealers to conduct a background check if a firearm purchaser presents a state permit to purchase or possess firearms that meets certain conditions. The center further notes that, as a result, handgun purchase license holders in Michigan are exempt from the federal background check requirement when buying a firearm.

Long gun transfers by private sellers, however, are not currently subject to background checks in Michigan.

Neither Ms. Churches nor Mr. Hertel responded to multiple requests to be interviewed in the past week about their bills, why the licensing requirement was an important addition to the framework of background checks and what they made of criticism against their bills, which passed with solely party line votes.

Ms. Breen did say, however, that it was her belief that one of the main reasons background checks and licensure haven't been applied to long guns was because of opposition from the previously Republican-led Legislature and that bills addressing long guns were tanked because they were Democratic-sponsored bills.

Republican critics and those engaged in gun rights activism have questioned the need for the new bills at all and have further questioned whether the state would be able to properly enforce not only the background checks requirement but also the licensing requirement on long guns. Some have also criticized the committee hearings and floor debates on the bills thus far for lacking a great deal of analysis and wrangling with the details, instead focusing on testimony from gun violence victims and advocacy groups.

For Rep. Andrew Fink (R-Hillsdale), the bills would fail to address the types of shootings that likely accelerated the Democratic Party's recent push in Lansing for gun reform, those being the deadly shootings at Oxford High School in 2021 and the shooting on Michigan State University's campus earlier this year.

"This is not just about any one crime, right, but the pistol used at Oxford, the pistol used at Michigan State, many of the pistols used in crimes every day, people already have to go through this licensing process to legally purchase a pistol," Mr. Fink said. "And yet something like 94 percent of acts of gun violence occur with pistols. So, how effective this process is at reducing gun violence, I think you can be skeptical of it based on the fact that we already have it for the very weapons that are used to commit, not all, but the vast, vast majority. Twenty-times more gun crimes are committed with pistols than with long guns."

He went on to say that it was his understanding that a much lower, like four or six percent, of gun crimes area actually committed with long guns, and that statistical noise tends to outshine the effect pistols have had on the gun violence equation.

Mr. Fink also worried about the liability that would be enforced on gun sellers in another bill in the overall package, which would open up gun sellers and manufacturers to civil lawsuits in the instance of malicious injury or death that involved the use of a firearm.

"Why if we trusted background checks, are we putting this additional burden of strict liability on the sellers?" he said. "In other words, you would think if we think the background checks are worthwhile, that the seller would be absolved of responsibility for what the person (with a gun did) as long as he did it right."

Brendan Boudreau, executive director of the Great Lakes Gun Rights advocacy group, told Gongwer that they were opposed to the bills as they were interpreted as infringing on residents' right to own a firearm, among other concerns.

But, as it relates to the background checks question, Mr. Boudreau expounded by saying that the language was deceptive.

"When we're talking about what they're calling the universal background check bill, it is actually more accurately a universal gun licensing scheme. It's not universal background checks, it's a universal permit to purchase," he said. "(Legislators supporting the bills) go even farther and say, well, 'we're not going after law abiding gun owners.' Well, actually they are because specifically in the bill, they're repealing an exemption under current law that would allow a CPL holder, someone who has been trained and someone who has gone through a background check, to now get a purchase permit to go purchase a pistol."

Even without that caveat, Mr. Boudreau decried the bills because they would be a vast expansion of the pistol purchase permit system in Michigan, which he asserted wouldn't have prevented the shooting at Oxford High School in late 2021 and would severely hinder the free practice of having the right to keep in bear arms in the state.

Specifically, Mr. Boudreau's interpretation was that the background check bills themselves would ultimately criminalize several activities involving firearms which he labeled as "innocent activities."

"Let me give you an example here. It's unclear whether or not someone could loan a hunting rifle or shotgun to a close family member or a hunting buddy without (the receiving party) having to get a purchase permit. How do you how do you do that?" he said. "You could go Up North to a deer camp, and let's say your rifle breaks and your friend wants to loan you a gun. Well, under these packages, it's unclear whether or not that's a crime. That's a pretty innocent thing that they're now criminalizing."

He also used the example of an heirloom hunting rifle handed down to younger generations of family members, saying that because the receiver was not the original grandfathered exempt owner of the firearm, it was now unclear if that heirloom was considered an unregistered illegal gun under the proposed licensure framework.

The process could also add, in his interpretation of the proposals, another layer of what Mr. Boudreau called unnecessary bureaucracy.

Mr. Fink had similar concerns about the language of the bills and them being potentially hard to decipher from both a legal and layman's standpoint. The Senate bill includes a provision that notes firearms purchased or acquired before the effective date of the pending legislation were not subject to the licensing requirements, but the House bill does not include "acquired."

When looking in the bill for a definition of acquired, Mr. Fink said there was not one to be found. Even as an attorney, Mr. Fink said it was hard to know exactly what that meant in the context of the bill.

"We can use it casually. I think most of the time if a person uses the phrase acquire, you don't mean like, I borrowed it for a while," he said. "If I told you I acquired a new guitar, you would think that I had either purchased it or been given it or something like that. I think that's one source of ambiguity. … Purchaser is defined as either a buyer or a giftee. And that that actually does conform to what you might have expected because everybody always knew if your dad gives you a pistol, you still have to go get a license and have it registered. So, we've always known that about pistols. Does that mean that in the House version, the term purchase also means gift?"

Mr. Fink added that he has pointed these issues out to the bill sponsors but has not received a satisfactory response from the sponsors or other Democratic legislators.

For Ms. Breen's part in pushing the various pieces of legislation, the representative and Judiciary chair said she has had conversations with her Republican colleagues and maintains a good relationship with them to try and hear individual concerns. She also said that there was ample opportunity for those opposed to be heard and have a hand in the process of crafting the best legislation.

Ms. Breen cited her ongoing conversations with law enforcement to figure out their concerns, noting that some in law enforcement have come out in support of the background check changes. To concerns that the Democrats were moving too quickly and by proxy could be drafting poorly crafted laws in the process, Ms. Breen said if the bills have to be amended later, so be it – as long as they at least tried and make a dent in the problem of ballooning gun violence.

"Just because we can't solve the entire problem doesn't mean we can't solve part of the problem. You know, we, we can't let the perfect get in the way of good," Ms. Breen said when asked to react to some of her opponents' comments. "And that's another reason why we didn't want to retroactively register long gun is for those very reasons you cited. … Yes, there are millions of guns out there are already. People continue to buy firearms. This isn't something that we see slowing down. This isn't something that's going to stop. People are buying firearms every single day. So, there's no reason in the world why we can't at least prospectively going forward try to make a dent in the problem."

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