A litany of exasperating rituals flows from America’s regular mass shootings. One of the most frustrating is the hand-wringing that our politics is so polarized that there’s no way to move forward.
Since assault weapons bans aren’t coming back and AR-15-style rifles are here to stay, the most important thing we can do is modernize the background check system, around which there’s a modicum of bipartisan consensus. What’s required is gritty work in the administrative trenches that won’t get anyone elected — and there is substantial progress to report. But now we need more.
The F.B.I.’s National Instant Criminal Background Check System, known as NICS, stitches together three databases of state and federal criminal history records and other so-called hot files. Before NICS was set up in 1993, gun checks were largely the province of the states; some continue to do their own reviews.
NICS checks records to either approve consumer purchases from federally licensed firearms dealers or deny them to 10 categories of prohibited people: felons, fugitives, convicted drug users, people in the country illegally, people who’ve renounced U.S. citizenship, anyone dishonorably discharged from the military, people under a restraining order in regard to an intimate partner or convicted of a misdemeanor violent crime and anyone who has been adjudicated as mentally defective or committed to a psychiatric institution.
Sounds good — but sadly, NICS remains a false promise. Conceived as a first line of defense, the system is still honeycombed with enormous data gaps, loopholes and disputes over how those prohibited categories should be defined. Hundreds of thousands of crucial records remain outside the system, stacked in dusty boxes in courthouse basements or in legal limbo. As a result, lots of people who shouldn’t are buying guns.
“We know it is deadly to be missing even one critical record, and we’ve seen that in tragedies,” Rob Wilcox, the senior director of federal government affairs policy for Everytown for Gun Safety, told me.
Mental health records provide an especially vexing example. State privacy laws frequently prohibit the sharing of records — health care providers are hesitant too — and most states lack a contact person to collect the information and send it to the F.B.I.
In April 2007, Seung-Hui Cho killed 32 people at Virginia Tech University with guns he bought despite a documented history of court-ordered mental health treatment — records of which never made their way into the system. That shooting brought attention to what Everytown called “fatal gaps in record submissions that undermine the background check system.” A 2011 study by the National Center for State Courts found that states struggled to report even estimates on mental health adjudications or commitments.
Other issues involving mental health are perhaps more nuanced. Early reporting indicates that Mauricio Garcia, the gunman who this month killed eight people at Allen Premium Outlets outside Dallas, was in 2008 expelled from the Army after three months, perhaps because of mental health issues. An Army official told The Dallas Morning News that Mr. Garcia was terminated under a regulation related to a host of conditions, including disorders that could disturb “perception, thinking, emotional control or behavior.” If a dishonorable discharge triggers a NICS bar on obtaining a gun, shouldn’t other kinds of separations from the military as well?
Many other sorts of records are also an unmitigated mess. There are millions of accessible arrest records but often no solid information about the dispositions of cases. A 2013 study by the National Consortium for Justice Information and Statistics concluded that as much as a quarter of felony convictions were not available in NICS. Orders deriving from domestic relations cases may reside only in local courthouses and are challenging to untangle. Many drug arrests don’t make their way into the system, either.
This dry list of data issues masks heartbreaking consequences. In late 2021 the families of nine people massacred six years earlier at Emanuel A.M.E. Church in Charleston, S.C., reached an $88 million settlement with the Justice Department of their suit alleging that gaps in NICS data enabled the racist killer to obtain a gun despite his earlier drug arrest. An internal F.B.I. report partly blamed “untimely responses and/or incomplete records” from other law enforcement agencies and also cited a policy of relying on faxes rather than emails or phone calls to seek missing records.
Against that depressing backdrop, there has been important progress. Less than a year after the Virginia Tech shooting, with support from the National Rifle Association, Congress passed and President George W. Bush signed the NICS Improvement Act, intended to provide the states grants to get more of their mental health and other records to NICS. Thirty-two grants to state-level agencies totaling $42.4 million were awarded through the 2020 fiscal year.
In January 2016 the Department of Health and Human Services finalized rules to clarify that the Health Insurance Portability and Accountability Act of 1996, or HIPAA, was not an obstacle to the reporting of mental health records.
Today 36 states have laws requiring the reporting of mental health records to NICS. The number of those records in the system has soared, to 6.88 million early this year from 531,000 at the end of 2008. The number of purchases that were blocked because of mental health issues advanced in lock step, Everytown said; those denials rose to more than 11,000 in 2017 from 960 in 2008. But eight other states have laws merely allowing, not requiring, mental health records to be reported, a far lower standard. And six states — Arkansas, Michigan, Montana, New Hampshire, Ohio and Wyoming — and the District of Columbia have no relevant law at all, so they’re providing only modest amounts of mental health documents. As of January, Montana had provided 36 relevant mental health records; Wyoming had provided 22.
Last year’s Bipartisan Safer Communities Act provided new challenges and opportunities. The law expands the gun purchase prohibition for people convicted of domestic violence or subject to a restraining order to include dating partners, not just people married to or living with the victim. Reformers applauded this closing of the boyfriend loophole, but the worry is that many criminal history records don’t clarify whether such relationships existed. The act included some federal cash to encourage states to address those considerable gaps.
Sadly, though, the tragic tales keep piling up. Last month, the Justice Department reached a $144.5 million settlement with victims and relatives of those killed in a 2017 mass shooting at a church in Sutherland Springs, Texas. Some of the families sued in 2018 after the Air Force admitted it had not reported the violent history of the gunman, Devin Kelley, including a 2012 conviction for domestic assault, to the NICS system. That conviction, which led to the gunman’s dismissal from the service, should have prevented his being able to buy the guns he used in the attack.
A more basic NICS flaw involves simply identifying the prospective gun buyer. In 2023, are we really going to continue to allow purchasers to show only a driver’s license, an easily and regularly forged document? Every college student in America who wants a beer has a forged driver’s license. As far back as 2001, investigators from what is now the Government Accountability Office were able to purchase firearms in five states using counterfeit licenses. Today’s technology — and common sense — argues that buyers should be required to provide fingerprints, which would be read at a gun store by a scanner and then searched in the F.B.I.’s computerized fingerprint database, which is operated closely with the states. Such checks can be completed within a few hours. I’ll stipulate that for successful purchasers, all traces of the search would need to be destroyed immediately to satisfy privacy concerns.
Admittedly, these sorts of concerns don’t translate smoothly into our current political culture of shoutfests. But these are hair-on-fire issues that cry out for more — more general attention, more media coverage, more bully pulpit focus from police chiefs and F.B.I. honchos and the president and this Congress, more appropriated money and more public shaming of lazy or recalcitrant state and local governments and health care providers who know someone is dangerous.
Gun policy progressives grouse that other proposed NICS changes could be more important — closing the loophole that exempts gun shows and private transactions from NICS and closing the so-called Charleston loophole, which forces the system to approve gun sales after three days even if investigators need more time to unearth relevant records, as happened in the massacre there. Fair enough. But those issues at this time are politically gridlocked. That’s a fact.
But closing other NICS loopholes is a task within our grasp. Isn’t that more important than watching helplessly as the death toll continues to grow?
Gordon Witkin has covered criminal justice for decades. He is a former national affairs editor of U.S. News & World Report and was an executive editor at the Center for Public Integrity.
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