Background Checks Reimagined

I was talking to a fellow Libertarian about the recent gun debate and we both agreed we were sick of hearing all the standard rhetoric that comes from every side of the debate.  So I asked a simple question: What would be the Libertarian answer?  In an ideal Libertarian society, what could we do to help prevent these tragedies? 

Now, some of the standard answers came up that you’ve heard a hundred times: get rid of gun free zones; give people the option to defend themselves; banning things doesn’t actually work; due process matters; etc, etc. 

But then I wondered, should there still be a kind of background check system that could potentially prevent someone who is intent on doing harm to themselves or others from buying a gun?  What would that even look like in a Libertarian world?  Such a system would need to be voluntary.  Libertarians really don’t like being forced to participate in anything.  It would need to be temporary; a mistake in your youth should not restrict your rights as an adult.  Finally, it would need to be easily reversible.  As my friend and I discussed it further, we kind of imagined the way this system would work.  I present it to you here as food for thought.  I do not claim it’s the perfect Libertarian solution, or even that it will solve our violence problem.  It may not have prevented the recent tragedy, but it may have prevented others.  I simply want to inspire a different kind of conversation on the topic.

A Voluntary Free Market Style System

What we came up with is a voluntary background check system.  Ideally, it should be run by a nonprofit or a coalition of private sector industries, NOT the government.  There is no reason the NSSF, NRA, GOA and others couldn’t come together to fund a database.  These organizations have a vested interest in preventing gun violence while also protecting people’s rights, thus making it less susceptible to government corruption.  Perhaps instead of forcing individuals to use an archaic and burdensome system, we should make it so easy to use that there is no reason for them not to.  Such a system would be allowed to grow and evolve in a Free Market.  Gun sellers at gun shows could have an app on their phone to deliver necessary information about a potential buyer within just a few seconds. 

The managing organization would authorize access to the database, granting read access to pretty much anyone who wants to see it, and write access to only those that should be allowed to “red flag” an individual.  It seems very likely this should be restricted to medical professionals, intelligence agencies, maybe even firearm retailers themselves, and those who are qualified to say someone might be a danger to themselves or others.  I’m not sure local law enforcement should have the ability to “flag” someone in this manner.  Rather, they should adhere to the due process needed to restrict someone’s rights. 

One of the problems with our current system is its binary nature.  Either you CAN buy a gun or you CAN’T—there is no in between.  The new system should be gradient, allowing a seller to potentially see whether you “should” be buying a gun or not, in addition to whether you have lost that right through due process (which is all our current system shows). 

For example, if someone is experiencing violent thoughts or tendencies, their mental healthcare professional could “flag” them in the system for a maximum of 6 months.  That means that after a 6 month “hold” the flag automatically expires and goes away.  It is in no way permanent, although a new flag could be added.  At minimum this would prompt a flagger to review their assessment every 6 months and act if they feel a threat is still present.  That flag also DOES NOT prevent gun store owners from selling that person a gun.  What it does do is give that gun store owner informed consent.  They can choose to sell someone a firearm or not, that is up to them.  The entire system is voluntary and open.  Individuals should be allowed to check the database to see if they currently have a flag. In addition, there should be a review process that makes it possible to remove such a flag. In this new system, no authorized flagger is required to flag people, with the exception of people who are lawfully forbidden from owning a gun. 

We talked through two examples to see how this might affect people in two very different circumstances.  Say there is an individual who lost their family around Christmas time.  Their mental health professional might flag them in the system just long enough to expire after the new year.  That person gets emotionally low and decides to buy a gun.  The gun shop owner sees the flag and sees that it expires after the first of the year.  No personal information is available, as that would be an invasion of privacy.  But that store owner might ask a few more questions of his customer than normal.  “Are you looking forward to Christmas?”  “Spending time with the family?” etc.  These questions are likely to get answers that indicate this person is currently not in a good place mentally.  The retailer can now make an informed decision on whether selling that person a firearm right now is proper.  I believe most would likely refuse. 

Another example might be an abused spouse.  Let’s say they made the list because couples counseling has revealed violence in the home.  To be on the safe side, the councilor added both people to the list.  Again, our gun store owner is probably prompted to pay special attention to this person and ask a lot of questions.  Perhaps the husband starts talking about how angry he is his wife left with the kids.  He’s likely to say some things that may not sit right with the gun store owner.  On the other hand, the wife may answer those same questions differently.  Expressing a need to protect herself and her children from an abusive husband.  Can people lie?  Sure.  But the gun store owner can now make a more informed decision about whether or not to sell this individual a firearm at this moment in time. 

On the other side of that coin, if a retailer knowingly sells a firearm to someone with 5 or 6 flags in the system, then they may have some culpability in any tragedy that follows.  If the seller sees several flags on an individual’s background check (each put there by a different source), I believe it would make a difference to the retailer.  A system like this allows for that to be judged on a case by case basis, rather than passing a blanket law punishing all retailers regardless of circumstance.  Just to be clear on my personal stance, I think those instances of possible negligence should be handled in civil courts, not criminal courts.  Either way, our current system does not give the retailer enough information to make such a judgement call, and therefore current attempts to hold them accountable are misplaced. 

I believe such a gradient system could save lives.  I think having it maintained voluntarily through the private sector will be better maintained, more user friendly, and far superior to the government-maintained list.  Those who are authorized to add “flags” to the system should be restricted and closely controlled by the agency maintaining the database and should never be forced to report anyone. Making the list free and available to anyone would allow private sellers the ability to perform a check without any undue burden, thus voluntarily expanding background checks and allowing retailers to vet their customers.  The temporary nature of all “flags” being capped at only a 6-month timeframe allows more freedom to both add people to the list and for individuals on the list to not be unreasonably compromised indefinitely, unlike secret government watchlists.  The repeals process should be quick, easy, and confidential. 

This is not a perfect solution.  It will not stop violence.  People who want to hurt other people will always find a way.  Part of this discussion also needs to be about how we get help for those people.  This kid in Florida sent up every red flag there was, and everyone all up and down the line failed to help him.  One person in his life could have made the difference by stepping up and getting him the help that he so clearly needed.  That having been said, I’d rather see a system like this one implemented rather than expansion of the current mandatory government-run background system or the implementation of a secret government watchlist like “No fly, No buy”.

I hope, if nothing else, this idea got you thinking more about real solutions rather than more rhetoric.  Because we need to have more solution-based discussions as opposed to agenda-based arguments.