Citation(s) from the GunPolicy.org literature library
Cook, Philip J and Jens Ludwig. 2013 ‘The Limited Impact of the Brady Act - Discussion.’ Reducing Gun Violence in America: Informing Policy with Evidence and Analysis; Part I, Chapter 2, p. 28. Baltimore, MD: Johns Hopkins University Press. 25 January
The most prominent of the likely explanations is simply that by limiting the background-check requirement to sales by FFLs, the Brady Act's background-check requirement had no direct effect on the vast majority of transactions that provide criminals with guns. Surveys of prisoners in the 1980s show that only one-fifth obtained their guns directly from a licensed gun dealer (Wright & Rossi, 1994), even though at that time dealers in most states were not required to conduct background checks to verify the buyer's eligibility.(5)
Most crime guns are obtained from people who are not licensed FFLs through private transactions that are largely unregulated under existing federal law - that is, these crime guns are obtained in the off-the-books secondary gun market.
While this "private sale loophole" is the most compelling explanation for limited impact of the Brady Act, there are several other considerations that should be taken into account. First, a majority of adults who end up using a gun in crime are not disqualified from possessing a gun. Cook, Ludwig and Braga (2005) find that nearly three in five homicide offenders in Illinois in 2001 did not have a felony conviction within the 10 years prior to the homicide. Not that they had spotless records - only one-quarter of homicide offenders had not been arrested at least once during the 10 years prior to the homicide.
Expanding the crime-related disqualification criteria to include, say, conviction of any violent misdemeanor (rather than the current disqualification, which is limited to felonies and misdemeanor domestic violence) could help in this respect…
There has been considerable interest in closing the private-sales loophole by simply requiring that all gun sales, whether in the primary or secondary market, be subject to background checks. California has instituted such a system for firearms transactions, which must go through an FFL who then charges a fee for conducting the background check. Such a system, were it to be enforceable, would make it more difficult for disqualified people to obtain a gun. The fundamental question is how to enforce such a system. California requires that handguns be registered to their owner, which is useful in holding owners accountable for the disposition of their handguns. Even without a registration requirement, a universal background check system could be enforced in a variety of ways, including law-enforcement oversight of gun shows and undercover "buy and bust" operations by the police. Whether the California system is successful in reducing gun violence has not been established (but see Webster, Vernick, and Bulzacchelli 2009).
[FFL = Federal Firearms License]
5) For a more recent estimate of the percent of crime guns obtained directly from an FFL, see the essay by Webster, Vernick, McGinty, and Alcorn (in this volume).
Cook, Philip J., Jens Ludwig, and Anthony A. Braga. "Criminal Records of Homicide Offenders." Journal of the American Medical Association, no. 294 (2005): 598–601.
Webster Daniel W, Jon S Vernick, and MT Bulzacchelli. 2009. "Effects of state-level firearm seller accountability policies on firearms trafficking." Journal of Urban Health; 86:525–537.
Wright, James D., and Peter H. Rossi. 1994. Armed and Considered Dangerous. 2nd ed. New York: Aldine de Gruyter.