“In addition to a moment of silence, I would like to ask for a moment of action,” Judiciary Committee Chair Sen. Dick Durbin (D-IL) said in his opening remarks. “A moment of real caring. A moment when we don’t allow others to do what we need to do. Prayer leaders have their important place in this, but we are Senate leaders. What are we doing?”
The hearing also follows a mass shooting in Atlanta at three Asian-owned businesses that killed eight people. There have been at least eight other mass shootings in the past seven days, according to Gun Violence Archive, which tracks shootings in which four or more people were injured or killed. And it comes as the Senate prepares to consider legislation that would institute universal background checks for gun sales, and that would extend the amount of time the federal government can take to conduct those checks.
Currently, anyone who wants to buy a gun from a licensed dealer, such as a gun store, must pass a federal background check meant to ensure the buyer doesn’t have a criminal background or a history of mental illness. Requests for background checks are handled by the FBI, which legally has three days to complete them — if that deadline isn’t met, the seller can offer the buyer the gun.
According to Everytown for Gun Safety, a gun control advocacy group, 90 percent of background checks are completed right away; however, as Joshua Eaton has explained for FiveThirtyEight, the FBI can struggle to meet the three-day deadline during periods in which there is particularly high demand for guns, and some mass shooters, such as the man who killed nine people in 2015 at a Black church in South Carolina, have acquired their weapons through this loophole.
HR 1446 attempts to solve this issue by giving the FBI 10 days to complete a background check request, and a grace period of 10 additional days (during which the buyer can petition the federal government to speed up its work) before a seller can make a gun available to purchase despite the check being incomplete.
And HR 8 addresses a broader loophole: that of unlicensed sellers. If someone buys a gun online, at a gun show, or from family or friends, no background check is needed. Under HR 8, however, unlicensed and private sellers would need to begin conducting background checks.
Such a measure would likely have an immediate effect on who is able to buy guns. For instance, Everytown recently did an analysis of gun sales conducted on the online portal Armslist, and found slightly more than 10 percent of people who successfully bought guns on the marketplace would not have passed a background check submitted by a licensed seller. Overall, according to the gun control advocacy group the Giffords Law Center, 22 percent of all guns are sold without background checks.
Either — or both — passing the Senate would mark a radical change in federal gun policy and become the first successful federal gun reform effort in more than a quarter of a century.
But there are two problems.
One, it isn’t clear that background checks, on the whole, are effective at stopping gun violence; in fact, available research suggests they do not. And two, both bills seem destined to wither in a Senate in which the Democratic caucus, which supports these reforms and others, needs the support of at least 10 Republican senators (who historically have been against restricting access to firearms) to pass legislation.
Background checks don’t seem to be incredibly effective — at least on their own
A number of scholars and advocacy groups, such as Everytown and the Giffords Law Center, have studied the effectiveness of universal background checks.
There are examples of mass shootings they may have stopped, such as the 2019 shootings in Midland and Odessa, Texas. That shooter failed his background check but acquired arms through a private sale, the type that would be subject to background checks under HR 8.
But many mass shooters, including those who killed people in Aurora, Colorado; Parkland, Florida; and Las Vegas, passed background checks, as have countless others who did not commit mass shootings but used firearms to harm themselves or others.
What the research has begun to suggest is that universal background checks are most effective when coupled with other measures, particularly when enacted combined with a registration system that requires gun owners to have licenses akin to driver’s licenses.
As Vox’s German Lopez has explained:
In Connecticut, researchers looked at what happened after the state passed a permit-to-purchase law for handguns — finding a 40 percent drop in gun homicides and 15 percent reduction in handgun suicides. In Missouri, researchers looked at the aftermath of the state repealing its handgun permit-to-purchase law — finding a 23 percent increase in firearm homicides but no significant increase in non-firearm homicides, as well as 16 percent higher handgun suicides.
In the past, advocates pointed to these studies as evidence that comprehensive background checks work, because the licensing systems in the states were paired with comprehensive background checks. But the evidence increasingly suggests that it’s the licensing system, not the comprehensive background checks, that’s key.
It’s because of this that Cassandra Crifasi, the deputy director of the Johns Hopkins Center for Gun Policy and Research, told Birenbaum that universal background checks are not the be-all and end-all of gun reform, but are instead a “really important first step.”
Ideally, passing background check reform would then create a platform lawmakers could use to create a licensing system — Sen. Cory Booker has already drafted legislation that would create such a system, for instance.
But it would also address a separate issue. As is the case with marijuana, different states have different rules on firearms. Most do not have a universal background check rule; only 22 do. Creating a federal universal background check policy would place states on equal footing, and would, at least in theory, limit the flow of guns across state lines.
According to the Giffords Law Center, states lacking universal background checks saw 30 percent higher weapons exports for guns used in crimes than states with such laws. And as Birenbaum has written, in 2017, Chicago — subject to Illinois’s background check laws — saw 60 percent of all guns used in crimes coming from out of state. Bordering states Indiana, Wisconsin, and Missouri all have background check loopholes.
The House has voted to get all states on the same page. But the Senate does not seem poised to follow suit.
Gun reform has failed in the Senate time and again
Every time there is a mass shooting, calls ring out for gun reform. And then reforms fail.
Following the deadliest mass shooting in the US thus far in 2017, there was a bipartisan effort to ban bump stocks, which allow for simulated semiautomatic fire. That went nowhere, until then-President Donald Trump stepped in and banned the stocks through executive action.
In 2016, following a mass shooting at the Pulse nightclub in Orlando, Florida, there was an effort led by Sen. Chris Murphy (D-CT) to institute universal background checks. The Senate — including now-key swing vote Sen. Joe Manchin (D-WV) — rejected the plan.
In 2015, Democrats dusted off a measure that had failed in 2013 following the Newtown, Connecticut, shooting that left 20 children dead, and tried to pass a bill that would bar people on the terrorism watch list from buying guns. Neither passed into law.
That 2013 bill was a bipartisan one led by Manchin and Pennsylvania Republican Sen. Pat Toomey. And it was designed with input from the National Rifle Association (which was expected to publicly back the bill but refused to do so in the end, despite having successfully weakened several provisions).
Once again, there are calls for reform, and advocates are saying they hope this time there will be change.
“I have been waiting five years for someone to take action,” Brandon Wolf, who survived the 2016 Pulse nightclub shooting, said in response to the shootings at Asian-owned businesses in Atlanta. “This moment has to be different.”
There are some things that are different that may give reform advocates some reason for optimism. The NRA, which has opposed reforms in the past, is in a weakened state, mired in bankruptcy, lawsuits, and investigations. President Joe Biden is supportive of reforms, and pressed the Senate to pass both House bills on Tuesday, saying, “This is not and should not be a partisan issue, this is an American issue. It will save lives.”
He also called on Congress to go further, and to pass an assault weapons ban: “I don’t need to wait another minute, let alone an hour, to take commonsense steps that will save lives in the future, and to urge my colleagues in the House and Senate to act. We can ban assault weapons and high-capacity magazines in this country once again.”
Besides the White House, the Democratic Party holds both the House and Senate. But the majority Democrats enjoy in the Senate is based on just one vote — Vice President Kamala Harris’s tiebreaker in the evenly divided chamber. This means that for any Democratic-backed legislation to pass, at least 10 GOP senators need to sign on.
And there’s little sign Republicans will be willing to support the House’s bills. During Tuesday’s hearing, a number of Republicans attacked the House efforts, with Sen. Ted Cruz claiming that Democrats’ proposals would not only “not reduce crime, it makes it worse.”
Democrats likely would not count on Cruz to be one of the 10 votes, but more moderate Republicans who might be expected to be among that number have also dismissed the House bills.
Sen. Susan Collins (R-ME) told CQ Roll Call she is against the House’s work, but would vote for the more limited 2013 Manchin-Toomey proposal, which would allow private sales to proceed without background checks should it come to the floor. Toomey reportedly has a similar stance.
This resistance is striking, given the number of Americans who support reform. As Birenbaum has written:
A Gallup poll from 2018 found that 92 percent of respondents favored universal background checks. Polling from Everytown and the gun control advocacy and research organization Giffords conducted after the 2020 election found that 93 percent of Americans want universal background checks — including “strong” support from 64 percent of Republicans and 67 percent of gun owners.
And as the Giffords Law Center notes, the polling suggests the vast majority of Americans also supports a licensing system.
In order to meet this public demand for change, Senate Democrats could take the step of abolishing the filibuster, the rule that mandates a 60-vote threshold be met to pass legislation. Without the filibuster, legislation could pass by a simple majority — the 51 votes Democrats currently possess. This reform seems highly unlikely; moderate Democrats like Manchin and Arizona’s Sen. Kyrsten Sinema have staunchly opposed abolishing the filibuster.
And even if in some world the Senate did do away with the filibuster, that’s no guarantee even the House’s moderate plans would pass. Manchin, for instance, suggested last week he may not be behind the House bill, either.
“Commercial means only closing the loopholes at gun shows and on the internet,” Manchin told CQ Roll Call. “Law-abiding gun owners aren’t going to sell their guns to strangers. That’s how we’re taught. We’re not going to loan guns to strangers or even to family members who aren’t responsible. We’re not doing that, so don’t take all my rights away.”
That means that if any change is going to come, it will likely be down to Biden.
The president, as Trump demonstrated, has some executive agency on firearms through his control of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and the FBI. Biden could, for instance, direct the ATF to mandate that all firearms be subject to background checks.
And as Vox’s German Lopez has explained, executive agencies could take indirect actions — from improving living conditions to drug reform — that research suggests would also reduce gun violence.
At the moment, Biden has seemed to favor congressional action, which would prove more durable, as executive changes could be overturned by his successors. The Senate, however, seems disinclined to make any of these lasting changes.