Federal and Florida laws require a retailer to conduct a background check of any potential firearm buyer through the Florida Department of Law Enforcement before selling and delivering the weapon. The background check is to make sure that guns do not fall into the wrong hands — that is, the hands of people who may pose a danger to themselves or the public.
No one can responsibly disagree with trying to keep guns away from people who may hurt themselves or others.
To that end, federal and Florida law classifies these people as “prohibited persons,” those not eligible to purchase or possess a firearm. There 10 categories of prohibited persons:
Convicted of a felony or equivalent; fugitive from justice; unlawful user or addicted to a controlled substance; adjudicated mentally defective or involuntarily committed to treatment; illegal alien; dishonorable discharge from the U.S. armed forces; renounced U.S. citizenship; active protection order (restraining order, injunction for protection, etc.); convicted of a misdemeanor crime of domestic violence; under indictment or information for a felony.
In addition to federal law, Florida law also prohibits a retail sale to persons who: are adjudicated delinquent of a crime that would have been a felony if committed by an adult until the age of 24 or until record is expunged; receive “adjudication withheld” on any felony or on a misdemeanor crime of domestic violence and three years has not yet lapsed since the completion of sentencing provisions; were recently arrested for a potentially disqualifying crime that has not been dismissed or disposed of in court.
However, current federal and Florida laws do not require a background check when someone — including a prohibited person — buys a firearm from a seller who is not a retailer, even though the danger is presumably the same.
About 80 percent of all firearms acquired for criminal purposes are obtained through private-party transfers, none of which go through a background check. Apart from acquiring a firearm from a retailer, a person may obtain a gun through a private sale, a transfer, a gift, or through unlawful ways, such as by theft, smuggling, using a straw buyer to purchase a firearm from a retailer, or other black-market transactions — none of which, under law, are preceded by a background check.
There is no valid reason to not require the same background check be performed for the sale of a gun when it is purchased outside a retail transaction. The public-safety concerns are the same. And the public supports it. Numerous polls over the years show that background checks are the most popular firearm-safety measure to reduce gun violence, with support frequently over 80 percent.
It’s only common sense to require a background check when someone buys a firearm from a seller who is not a retailer. It is fully consistent with the individual constitutional right to keep and bear arms for self-defense, hunting, sport and collecting. And, of paramount importance, it will not take a single gun away from any law-abiding person or prevent that person from buying or possessing a gun.
Ultimately, it is a reasonable step that will help prevent firearms from getting into the hands of people who pose a danger to themselves or the public.
Roberto Martinez is a former U.S. attorney for the Southern District of Florida. Gabriela Martinez is a postbaccalaureate pre-med student at Columbia University.