San Bernardino shooting: Can a neighbor buy guns for you?

The first charges in the San Bernardino terrorist attack will be brought against a friend and former neighbor of Syed Farook and his wife Tashfeen Malik, law enforcement officials said Thursday. Enrique Marquez, of Riverside, California, allegedly purchased the two military-style rifles the couple used to kill 14 people at the Inland Regional Center (IRC) in San Bernardino on December 2, setting off a wave of fear and frustration over national policy on both gun control and terrorism. 

California has some of the nation's most secure gun control laws, earning the top grade from the Law Center to Prevent Gun Violence's annual scorecard for five years running: all gun sales require a licensed dealer and background check, guns classified by the state as assault weapons are banned, and buyers may not purchase more than one handgun per month. 

That's prompted all sides of the gun control debate to wonder how Mr. Farook and his wife, who were killed in a shootout with law enforcement, managed to pull off their attack, which could have been much worse. According to The Washington Post, the couple had thousands more rounds of ammunition in their car and home, indicating that the four-minute attack at the IRC was not meant to be their only target. 

Many Democratic politicians, including President Obama, quickly relaunched efforts to tighten gun control laws in the wake of the attacks, especially to limit individuals on "do not fly" or terror watch lists from obtaining firearms, but Congress resisted. Some governors, however, such as Connecticut's Dannel P. Malloy, have vowed to impose a ban in their states via executive action.

Neither of the San Bernardino attackers was on either list, but the overlap between two hot-button issues — Islamic State-inspired terrorism, and gun violence — convinced many that action was needed to prevent similar attacks.

Those who opposed the ban claimed gun-control measures were irrelevant, and criticized the President for not focusing on fighting terror abroad before its influence reaches the US. But the San Bernardino attacks do reveal two loopholes in gun-control laws that supporters and opponents of gun control laws may both highlight as evidence for their positions.

Mr. Marquez bought the rifles legally three years ago, then gave them to Farook. Officers say it was done deliberately to avoid putting Farook through a background check or be recorded as the purchaser of the firearm.

California's assault weapons ban has an exception for weapons like Farook's Smith & Wesson M&P15, and Malik's DPMS A-15, if a button-release feature is added to the weapons, making the weapon's magazine fixed rather than detachable. Some gunmakers in California now specialize in adding such mechanisms. Farook and Malik had attempted to modify their guns even further, but failed to make them fire automatically. 

They also used two handguns, purchased legally in Corona, California.

Marquez's illegal gun transfer to the couple also highlights so-called straw purchases, when a gun is bought by someone who intends to give it to someone else. According to a PBS "Frontline" report, such gun sales are often easy to spot, with both individuals visiting a gun dealer together to make the purchase, and account for a significant percentage of guns used in crimes, versus only 10-15 percent that are stolen.

Farook and Marquez may have intended to use them in a potential attack they discussed in 2012, but never carried out. The guns were purchased during that time. Yet it's unclear if Marquez knew about plans for the December 2015 attacks when he handed over the guns. Previously, law enforcement said he did not, but last week, they told The Washington Post that he could be charged with a federal felony if aware of the Farooks' plans.

Polls have found that, despite split opinions on "gun control" writ large, the vast majority of Americans support background checks for gun purchases. Yet preventing "straw purchases" has proven difficult through standard background checks. 

Today, the National Rifle Association (NRA) opposes expanding background checks: a shift from their late-1990s position of encouraging checks "for every sale at every gun show. No loopholes anywhere for anyone," as NRA chief executive officer Wayne LaPierre said testifying to a Congressional subcommittee in 1999. 

The NRA says it opposes expanding background checks because they don't get to the "real" problem: illegal guns, including straw purchases. "No amount of background checks can stop these criminals," says the organization's Institute for Legal Action. 

But the gun lobby's opposition also stems from fears of a national gun registry, which they claim could one day enable the government to confiscate citizens' guns – an unconstitutional action. 

In a 2013 op-ed for CNN, Stanford law professor John J. Donohue argues that, given most citizens' support for background checks, the current push against them stems from manufacturers themselves. The impact of background checks on gun sales is more than lost dollars when potential buyers with mental illness or criminal records are turned away, he says:

There is also an indirect loss of profit: Cutting off sales to the mentally ill and criminals will reduce crime and thereby reduce the public's demand for guns for self-protection.

The gun manufacturers saw gun sales plummet during the dark days of the Clinton administration when crime dropped sharply every year. The 42% drop in the murder rate from 1993 to 2000 was a nightmare for gun sellers. 

While national agreement over background checks seems far off, states like Connecticut and California may continue imposing stricter laws, at least on what types of guns are available for purchase. And cities may continue to come to consensus: earlier this month, the Supreme Court declined to hear a challenge to a Chicago suburb's ban on semiautomatic weapons with high-capacity magazines.

"I am certain California will re-examine [the button-mechanism modification] law in the near future. I’d be shocked if they didn’t," Ladd Everitt, communications director of the Coalition to Stop Gun Violence, told the Huffington Post two days after the San Bernardino attack. "But this also proves you are not going to come up with a law that stops every single one of these."