The regular mass shootings in America have spawned a litany of exasperating rituals. The hand-wringing about how our politics are so polarized, there is no way forward is one of the most annoying.
Assault weapons bans won't be coming back, and AR-15-style guns are here to remain, we need to modernize our background check system. There is a small amount of bipartisan agreement on this. It's a lot of gritty, administrative work that will not get anyone elected. But there are significant progresses to report. Now we need to do more.
The F.B.I. The National Instant Criminal Background System (NICS), also known as NICS by the F.B.I., combines three databases of criminal records from state and federal agencies, along with other "hot files". Prior to 1993, the majority of gun checks were done by the states. Some still do their own reviews.
NICS checks records and approves or denies firearm purchases to consumers from federally licensed dealers. These prohibited persons include: felons or fugitives; drug users convicted in court; people who have renounced U.S. Citizenship; people dishonorably discharged by the military.
NICS is a good idea, but unfortunately it's a false one. The system, which was designed as a first-line of defense, is still rife with huge data gaps, loopholes, and disagreements over the definition of prohibited categories. The system is still missing hundreds of thousands of vital records, which are piled in dusty boxes or legal limbo in the basements of courthouses. Many people are purchasing guns who shouldn't.
Rob Wilcox is the senior director for federal government affairs at Everytown for Gun Safety. He told me, "We know that it's deadly to miss even one crucial record. We've seen this in tragedies."
Mental health records are a particularly vexing case. State privacy laws often prohibit the sharing records -- health care professionals are also hesitant -- and many states lack a person to collect and send the information to the F.B.I.
Seung-Hui Cho, a student at Virginia Tech University in April 2007, killed 32 people with guns that he purchased despite having a history of mental health treatment ordered by a court. Records of this treatment never found their way into any system. This shooting brought to light what Everytown termed 'fatal holes in record submissions which undermine the background-check system'. According to a 2011 study by the National Center for State Courts, states had difficulty reporting even estimates of mental health adjudications and commitments.
Some mental health issues are more nuanced. Early reports indicate that Mauricio Garca, the gunman responsible for the eight deaths at Allen Premium Outlets near Dallas this month, was expelled from his Army in 2008 after only three months. This could be due to mental health problems. According to an Army official, Mr. Garcia's termination was due to a regulation that dealt with a variety of conditions that might affect 'perception or thinking', 'emotional control', or 'behavior'. Shouldn't other types of separations trigger a bar from NICS on getting a gun?
There are many other types of records that are equally a mess. Millions of arrest records are available, but there is often little information on the disposition of the cases. According to a 2013 study conducted by the National Consortium for Justice Information and Statistics, up to a quarter (25%) of all felony convictions are not recorded in NICS. Domestic relations orders may be kept in local courts and can be difficult to decipher. Likewise, many drug arrests never make it into the system.
The dry list of data problems hides the heartbreaking consequences. Families of the nine victims of the Emanuel A.M.E. Church massacre in Charleston, S.C. six years prior reached a $88 million settlement in late 2021 with the Justice Department. They claimed that gaps in NICS records allowed the racist killer, who had been arrested for drug possession, to get a gun, despite the arrest. A F.B.I. A report attributed 'untimely response and/or incomplete record' to other law enforcement agencies. It also stated that faxes were preferred over emails and phone calls for locating missing records.
In spite of this depressing background, important progress has been made. With the support of the National Rifle Association and less than a month after the Virginia Tech Shooting, Congress passed the NICS Improvement Act and President George W. Bush enacted it. The act was intended to give grants to the states to help them send more mental health records and other information to NICS. 32 grants totaling $42,4 million were given to state agencies through the 2020 fiscal period.
The Department of Health and Human Services, in January 2016, finalized regulations to clarify that HIPAA (Health Insurance Portability and Accountability Act of 1996) was not an obstruction to the reporting of records of mental health.
Today, 36 states require the reporting of mental records to NICS. This number has increased dramatically, from 531,000 records at the end 2008 to 6.88 millions early this year. Everytown reported that the number of purchases blocked due to mental health issues increased in lock-step. These denials grew from 960 in 2008 to over 11,000 in 2017. Eight other states, however, have laws that only allow mental health records to reported and not require them, which is a much lower standard. Six states -- Arkansas Michigan Montana New Hampshire Ohio Wyoming and Wyoming -- as well as the District of Columbia, have no laws at all that are relevant, and so only provide a modest amount of mental health records. Wyoming provided 22 mental health records, while Montana provided 36.
The Bipartisan Safer Community Act of last year presented new challenges and possibilities. The law extends the prohibition on gun purchases for those convicted of domestic abuse or under a restraining orders to include people who are dating the victim, and not only people who are married or live with her. Reformers applauded the closing of this loophole for boyfriends, but there is concern that many criminal records do not clarify whether these relationships exist. The federal government provided some money to states to help them close those gaps.
Unfortunately, tragic stories continue to pile up. The Justice Department settled a case last month with the victims and families of those who were killed in a mass shooting in 2017 at a Sutherland Springs church. Some of these families filed a lawsuit in 2018 when the Air Force admitted that it hadn't reported to NICS the violent past of Devin Kelley. This included a 2012 conviction of domestic assault. This conviction, which led the gunman to be dismissed from the Air Force, should have prevented him being able buy the guns used in the attack.
The NICS flaw is more fundamental and involves identifying the potential gun buyer. Are we going to still allow buyers to only show a driver’s license in 2023? This is a document that can be easily forged. In America, every college student who wants to buy a beer is using a fake driver's licence. Investigators of the Government Accountability Office, which is what we are today, were able to buy firearms using fake licenses as early as 2001. The technology of today -- and commonsense -- argue that gun buyers should have to submit their fingerprints. These would then be scanned at the gun store and searched by the F.B.I. The database is closely coordinated with the states. These checks can be done in a matter of hours. For successful buyers, I will stipulate that all traces of search must be immediately destroyed to satisfy privacy concerns.
These concerns are not easily translated into the current culture of political shoutfests. These are hot-button issues that demand more attention -- more media coverage, more focus on the bully pulpit from F.B.I. and police chiefs. Honchos, the President and this Congress. More money appropriated and public shame of lazy or recalcitrant local and state governments as well as health care providers that know someone is dangerous.
Progressives in gun policy complain that other proposed NICS amendments could be more significant -- closing the loophole which exempts private transactions and gun shows from NICS, and closing the so called Charleston loophole. This loophole forces the system approve gun sales within three days, even if the investigators require more time to find relevant records as was the case during the Charleston massacre. It's fair. These issues are currently politically stalled. It's a simple fact.
Closing other NICS loopholes, however, is within our reach. Isn't this more important than watching helplessly while the death toll keeps on rising?
Gordon Witkin is a criminal justice reporter who has been covering the subject for many years. He was the former national affairs editor for U.S. News & World Report, and executive editor for the Center for Public Integrity.