Monday, March 7, 2016

Purchasing a gun with a criminal record? It's a trap.

For all of the hot air that gets exchanged between politicians and pundits on the controversial issue of gun control, I've seen almost no one actually dig into an obvious topic of discussion: What do the current background check laws surrounding guns actually say? This omission is a shame. Whether you're a staunch supporter of the Second Amendment, or believe guns shouldn't be owned by anyone except the military and police, there is something rotten in the current background check laws surrounding guns, and it merits discussion.


If you want to own a gun and carry a criminal record, there are two main statutes you have to deal with. First, the federal law:
"It shall be unlawful for any person-- ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which as been shipped or transported in interstate or foreign commerce."
18 U.S.C. § 922(g)(1).

And the similarly phrased Pennsylvania law:
"A license [to own a firearm] shall not be issued to any of the following: ... An individual who is charged with or has been convicted of a crime punishable by imprisonment for a term exceeding one year except as provided for in section 6123 (relating to waiver of disability or pardons)."
18 Pa. C.S. § 6109(e)(1)(viii).

The bottom line: You may not own a gun if you have been convicted of a crime "punishable by imprisonment for a term exceeding one year." Simple enough? Not at all.


In order to comply with the above laws, would-be purchasers in Pennsylvania gun stores undergo a background check performed by the Pennsylvania State Police. To someone who is unfamiliar with U.S. gun laws, "background check" probably sounds like this:

You walk into a gun store, pick out a gun, and write your name, social security no., date of birth, etc. on a form. The police look up your record. If your criminal record is clean, you're allowed to buy the gun. If you have that forbidden "crime punishable by imprisonment for a term exceeding one year," on your record, the police instruct the gun store clerk to turn you down. You leave the gun store disappointed and move on with your life.

If only it were so simple. Here's how it really works:
You walk into a gun store and pick out a gun. You tell the gun store clerk you're interested in making a purchase. The store clerk tells you that you must fill out two forms first:

First, there is Form 4473 from the U.S. Department of Justice Bureau of Alcohol, Tobacco, Firearms and Explosives (downloadable here). Form 4473 does not just ask you for your name, date of birth, etc. It asks roughly a dozen different questions about your history, including this:

ATF Form 4473, No. 11(c) (original emphasis included).

Below these questions are 8 lines of bold but tiny text: 

ATF Form 4473 (text above signature line).

Once you're done with the ATF form, you'll get a second form, this time from the state. It's called SP 4-127, and looks like this. The form contains almost the same question:

SP 4-127, No. 30(G). And almost the same fine print warning:

SP 4-127, No. 33.

If your criminal record is clean, you'll check "No" on these forms, the background check will come back clean, and you'll be able to purchase a gun.

If your criminal record is not clean, and you're not sure which side of the "crime punishable by imprisonment for a term exceeding one year" line you fall on, you won't know what to do. The store clerk won't be able to help you, but he or she will tell you that if you check "yes" to anything the form asks, you might as well not submit it at all because your gun request will be denied. Maybe you missed the warning language about "false statements" on the forms. You check "no." Give it a shot. The background check comes back as "Denied." You leave the store.

A week later, the police call and ask to meet with you. Shortly after that, you're under arrest for knowing false statements to authorities in an attempt to get a firearm. The crime is punishable by up to ten years in prison under federal law, 18 U.S.C. § 924(a), and up to seven years in prison under Pennsylvania law. 18 Pa. C.S. § 6111(g)(4)(ii).

At trial, you'll have only one defense: That while you got the answer to these forms wrong, you did not "knowingly" get it wrong. It was a mistake, not a lie. Maybe you'll succeed in convincing the jury of your mistake. If not, your criminal record just got a whole lot worse.

Based on the two forms cited above, the current background check laws are not just a safeguard against people with a criminal record obtaining a firearm. Intentionally or unintentionally, these laws can act as a trap to arrest and prosecute the poor or careless reader with a criminal conviction in the past.

In Pennsylvania, the following crimes are examples of what is punishable by more than one year in prison:
  • Theft of more than $50 (or retail theft of more than $150)
  • Criminal mischief (vandalism) causing more than $1,000 in damage
  • Many second offense and all third offense DUIs
  • Unsworn falsification (typically lying to a police officer)
  • Simple assault
  • Second offense solicitation of prostitution
With the exception of simple assault, none of these crimes are necessarily violent in nature, and therefore, none of these crimes immediately jump to one's common sense as being the type of thing that would prohibit possession of a gun. In most cases, a person sentenced for one of these crimes would face probation, not incarceration, and when jail time is required (such as DUI, which often carries mandatory jail terms), the total incarceration time would probably not be in excess of one year.

For people who were convicted and sentenced for these types of offenses years and decades ago, and have lived a normal life since, it may not be clear what constitutes a "crime punishable by imprisonment for a term exceeding one year." It may be simple enough to confuse "punishable" with how you were really punished, regardless of whether or not the form warns you otherwise.


There is no readily discernable reason that the current background check forms adopted by the federal and state governments need to become a game of "Answer Correctly Or Else." The police already check to make sure that every person who seeks a firearm does not carry a criminal record that would make firearm possession illegal. This same goal could be served, just as effectively, by requiring firearm purchasers to state their name and identifying information, verify their identity, and leave things at that. Why add the extra quiz question? Why make it a serious criminal offense to get that quiz question wrong?

Until someone wiser than I answers these questions (or changes the forms), the best advice I can give to anyone seeking a firearm that has anything questionable in their record is to be very very careful. For whatever reason, the process of obtaining a legal firearm in Pennsylvania and the U.S. for those with a criminal record is high risk and low reward: You cannot afford to get a question wrong on these forms. Check your criminal record. Consult with an attorney. Do everything you can possibly do to make sure that the information you submit to the police is right. Or do not submit anything at all.