Rep. Adam Schiff could use a new speechwriter, not to mention an intern in his comms office who can include the right link to his remarks. On Friday, the California congressman’s office blasted out a press release touting his “powerful” case for universal background checks during a meeting of the House Judiciary Committee. Embarrassingly, the link to the video of his comments that his press folks included in their release was instead a clip of his remarks from eight days ago (that had a whopping nine views as of this writing) complaining about the committee’s subpoena of Hunter Biden.

The press release did manage to feature a few excerpted comments from Schiff’s anti-gun monologue, none of which are particular powerful, except maybe to folks who suffer from a clear deficiency in critical thinking.

We live in a state – live in a country where you can go into a gun store. You can be a felon. You can have a serious mental health issue that should disqualify you from obtaining a weapon. You can have a domestic violence restraining order against you, and you can seek to buy – to purchase a gun. And you can be refused.

But you can leave that gun store, you can go outside, you can buy that same weapon off the back of someone’s truck, or you can buy it online, or you can buy it at a gun fair.

It makes no sense to have a situation in this country where you can be refused because you failed the background check when you go to a store, but you can leave the store and buy the same weapon in the parking lot. That makes no sense to anyone except perhaps the NRA.

The situation that Schiff describes can happen in a state with universal background checks just as easily as it can in a state where they’re not in place. There’s no way to police every person-to-person sale as it happens, so at best the gun control law he’s demanding is a criminal charge that can be brought after the transfer has been discovered by law enforcement. It won’t, however, stop a single felon or prohibited person from obtaining a gun.

These laws are not just impossible to enforce in real-time, but after the fact as well. As KRQE in Albuquerque, New Mexico reported shortly after that state’s universal background check law passed its first anniversary in 2020, not a single charge had been filed in the state in the twelve months the law had been in place.

In the first year since that law went into effect on July 1, 2019, court records show that no one was charged with violating the law. “We spent a lot of time, a lot of resources and a lot of money trying to enact this law that’s done absolutely nothing,” said Cibola County Sheriff Tony Mace.

As the president of the New Mexico Sheriffs’ Association, Sheriff Mace has been an outspoken opponent of the legislation since lawmakers proposed it in the Roundhouse. Still, when she signed it into law, Governor Michelle Lujan Grisham seemed confident that even sheriffs who opposed it would get on board.

The only people who were caught trying to transfer a gun without a background check were a few individuals ensnared in a sting operation conducted by the Albuquerque police, and even then no arrests or prosecutions took place.

In his remarks, Schiff said that Americans “overwhelmingly want background checks.” That might be true, at least based on public polling, but I’d argue that most folks don’t realize that every commercial sale of a firearm must go through a background check already, nor do they understand that mandating background checks be performed on all gun transfers won’t prevent illicit sales in the slightest. As I said on Twitter back when I was still regularly posting on social media:

Trying to enforce a law requiring background checks on gun owners selling one of their firearms to another individual would be like trying to enforce a law requiring you to show ID before you can get a beer from your buddy's cooler at the neighborhood BBQ. https://t.co/cGATbdGW5J

— Cam Edwards (@CamEdwards) August 15, 2019

There’s also evidence that public polling doesn’t accurately measure voters’ thoughts on the issue. In 2016 gun control groups were able to put a universal background check measure on the ballot as a referendum. Despite anti-gun groups spending tens of millions of dollars in support of the referendum and polls indicating the measure would pass with somewhere between 52 and 61 percent approval, when the actual votes were tallied that November Question 3 went down to defeat 48-52.

Universal background checks may sound good to some folks in theory, but in reality, they don’t prevent bad actors from getting their hands on a gun and are almost impossible to enforce and prosecute. Their primary benefit is to politicians like Schiff, who can proclaim they’re trying to “do something” about violent crime without having to get tough on the perpetrators.

If Schiff really wanted to encourage gun owners conducting private transfers to go through a background check, he could always adopt the idea put forward by Open Source Defense’s Kareem Shaya to open the NICS system to private inquiries while preventing that data from being used to establish a gun registry. As Shaya laid out a few years ago, we could use the Swiss system as a model.

1. Any gun buyer can log into the NICS background check system and enter their personal information. The system gives them a check number that expires in 1 week. (For reference here is ATF Form 4473, the background check form.)
2. The buyer can then buy firearms from any legal seller. They have to meet face-to-face (or ship the gun to a licensed dealer for the buyer to do the check with), and the buyer shows the check number. The seller verifies the buyer’s ID, enters the check number into the NICS system, and the system returns just one word: “approved” or “denied”. If the check is approved, they can proceed with the sale.
3. The system doesn’t collect any information at all on the item(s) being sold/transferred (type, make, model, quantity, etc.) — its only job is to check on whether the buyer is legally allowed to purchase firearms. After one week, when the check number expires, the system doesn’t retain any records. (That information is already archived for 20 years on the Form 4473 for all gun shop sales.) The system collects no information about the seller, as it’s designed to work without even knowing the seller’s identity.
4. Transfers between family members are exempt. Firearm loans of up to 14 days are also exempt — this is to accommodate a situation where, say, two people are on a backcountry hunting trip and one needs to lend the other a gun during the trip. They need some way to do that without committing a felony.

Shaya offered up that version of a universal background check as part of a grand bargain on gun control; establishing that process for UBCs in exchange for removing short barreled rifles and silencers from the NFA. That probably won’t ever happen, but there’s no reason why Shaya’s proposed system couldn’t be put in place as an option for private sellers who want to use it… other than the fact that anti-gunners like Schiff see universal background checks as a first step towards a national gun licensing and registration scheme. The anonymity afforded by Shaya’s system would thwart those plans, which in turn would render that system completely unacceptable to the gun prohibitionists.