Standing not far from a wall clock featuring the likeness of a Henry Repeating Arms rifle, Bill Roney reviewed the three-page, double-sided form that could make all the difference in whether he could sell a gun.
It’s called ATF Form 4473, the document that may decide if a prospective buyer can end up with a firearm.
The longtime owner of The Outdoorsman, a gun shop located in DeVargas Center, Roney says criminal background checks can make sure “bad people do not buy firearms.”
But as he braces for two new laws related to checks — one poised to provide more scrutiny over who gets to own a gun; the other designed to create a system that would provide information to law enforcement about people whose prospective purchases are denied or delayed — Roney questioned whether the latter bill will violate a person’s right to own a firearm.
“There are dangers to the collecting of databases,” he said.
In the wake of a deadly mass shooting at an elementary school in Uvalde, Texas, where 19 schoolchildren and two teachers were killed in May, changes are coming to the federal criminal background system. But those most connected to gun sales — customers, retailers and , to an extent, law enforcement — say they are uncertain just what those changes may mean or how effective they will be.
The bipartisan gun control law that President Joe Biden signed in June gives authorities 10 days to investigate the juvenile and mental health records of those who undergo background checks.
Miranda Viscoli, co-president of the board for New Mexicans to Prevent Gun Violence, said her organization is “thrilled” about those expansions to the background check system.
“If the sale of hundreds of thousands of guns is stopped, we know background checks are a good thing,” she said.
And by the end of September, another new law giving the US Attorney General’s Office and the FBI the right to disseminate information about potential gun buyers whose background checks are denied or delayed to local law enforcement agencies will kick in.
In March, Biden signed the Consolidated Appropriations Act of 2022 into law. The $1.5 trillion spending bill included a provision requiring federal authorities to send personal information on potential gun buyers whose background checks have been denied or delayed to state and local law enforcement.
According to a fax Roney received from the office of the FBI’s National Instant Criminal Background Check System liaison, federal firearms licensees will be required to submit the names and addresses associated with all background check denials and delays. The FBI then will have to submit that information — along with the date and time of the denial, the reason for the denial and the location of the attempted purchase — to local law enforcement within 24 hours of the denial or delay.
The act will go into effect on Oct. 1, but the FBI plans to implement the changes on Sept. 26, according to the fax.
Gun stores skeptical
Roney shakes his head at some of the provisions of current and impending laws on the background check process. The background check form requires the applicant to provide such commonplace data as name, address and citizenship, as well as criminal convictions, dishonorable discharge from the military, drug abuse problems and whether he or she is “mentally deficient.”
Roney questioned whether those suffering from mental health problems would necessarily tell the truth, and he says he has no way to access such personal information on any database to see if an applicant has a history of mental illness.
“We can’t access it [that information]and neither can the federal government [without a subpoena],” he said. “Isn’t that silly?”
Roney said he can call a number or use a computer to file a background check to the National Instant Criminal Background Check System and get a response fairly quickly. In general, he said about 70 percent of applicants are cleared to buy a gun.
If retailers like Roney are dubious about the checks’ effectiveness, proponents say they work exactly as designed — restricting access to firearms for those who shouldn’t own them.
“Is it going to stop gun violence? No. Background checks are simply one of those tools we have to get guns out of unsafe hands,” Viscoli said.
Diana Johnson of Ron Peterson Firearms in Albuquerque disagrees. She said that’s because criminals don’t come into stores like hers and voluntarily agree to a background check.
“Criminals are still going to get guns out there; they are getting guns off the street,” she said.
Either way, statistics indicate Americans are buying guns at a breakneck pace. Nearly 20 million were purchased in 2021, according to Forbes magazine, and while that was down from a record 22.8 million in 2020, it was far higher than 2019’s 16.7 million.
Roney said he has seen an increase in gun sales over the past few years as crime rates rise and people arm themselves for personal safety. He said the key demographic is middle-aged men and older — though as he spoke a young woman in her 20s was undergoing a background check in an effort to buy a small handgun.
According to a 2021 US Justice Department report, in 2017 more than 17 million background check applicants were cleared to buy firearms. Another 1.4 percent — 237,000 — had their applications denied.
What good is the background information?
Santa Fe County Sheriff Adan Mendoza said those who have been denied don’t necessarily have criminal records. But building a database of those who tried to legally buy guns and failed might “help if there is an incident where somebody uses a firearm, it will give us a little background, a little history.”
He acknowledged there is a “fine line” between creating such a database and honoring residents’ constitutional rights to own and bear firearms.
Mendoza said he had not yet received any guidelines on how the denial data will be disseminated among local law enforcement agencies.
As it is, law enforcement officials cannot access the National Instant Background Check System to review those background check reports. Nor can they get data on why a background check was denied, even if the applicant has a criminal record.
In a statement sent via email by FBI spokeswoman Holly Morris, the bureau’s NICS section confirmed all records in their system regarding a successful firearm transfer must be destroyed within 24 hours by law.
Sierra County Sheriff Glenn Hamilton said protections built into the background check system make it more difficult for local law enforcement to trace guns used for criminal activity — and the histories of those using them.
Hamilton recently told a state legislative committee that law enforcement cannot easily access background check data submitted to the check system. Nor can law enforcement agencies or gun store owners find out why someone failed a background check.
Hamilton said even if local law enforcement turns to the FBI and asks it to search the national background check system for a weapon, the pertinent information may already be gone due to background check information on successful purchases being purged within 24 hours.
“The expansion of the background check law here in New Mexico is completely unworkable, based on the way that the system is put in place,” Hamilton said.
How will the NICS Denial Notification Act work?
This year’s new NICS Denial Notification Act is set to provide local law enforcement with a wider array of information from a system Hamilton regards as opaque and somewhat lacking.
While the fax notification Roney received says information will be disseminated electronically to local law enforcement, the specifics of that process are not made clear.
“The NICS Section is working diligently on developing the tools to make this notification as seamless as possible,” the fax stated.
In their statement, the FBI’s NICS section said it is currently working on implementing an electronic notification process in accordance with the NICS Denial Notification Act.
“As planned, all responses will be sent electronically to the applicable agency in the firearm purchaser’s area of residence,” the FBI wrote via email.
The agency added that if a person’s place of residence is different than where they attempted to purchase a gun, a notification will be sent to law enforcement agencies in both areas.
Johnson, at the Albuquerque gun store, said background check delays often occur because a prospective buyer has an identical or similar name to someone with a criminal background. And Roney said he was worried the process will lead to a new database that includes “everybody, where they live and what they’re going to buy.”
Approval of a gun purchase can be delayed for up to three days, though Roney said NICS does not explain why it has delayed approval. Though the law allows him to release the gun to the buyer after three days if NICS does not deny the background check, he said his store has decided not to sell any guns unless the applicant passes the background check.
Chief Paul Joye of the Santa Fe Police Department said he supports the new provisions of the background checks. Asked if he thought the background checks are sound policy, he said, “That’s a tough one; that’s such a polarizing issue.”
But he added: “I support the background checks. I think anything that makes it more difficult for those who shouldn’t have firearms to obtain firearms, I support that.”