The issue of gun control leapt back into the national discourse in the wake of January’s Tucson massacre.


But one of the most shocking gaps in the effort to prevent people prohibited by law from purchasing firearms continues to fly beneath the radar. Records of at least two million dangerously mentally ill individuals whose names should already be in the nation’s criminal background check system remain missing.

Tens of thousands of people's records that would fall into other legally disqualifying categories in the background check system are also missing, with convicted felons high on the list. Yet Raw Story confirmed with experts on gun control that records of those whose mental illness has been legally determined to be a danger to themselves or others far outnumber the unreported information of individuals in other prohibiting categories.

In a statement released to Raw Story, Rep. Carolyn McCarthy (D-NY) – one of the most vocal advocates of gun control in the nation who introduced the bill that was passed in 2007 to strengthen the reporting of such disqualifying information – said, “This illustrates just how severely government is failing Americans who expect to be safe from dangerous weapons in the wrong hands, and just how important it is that we face this problem comprehensively and openly as a nation.”

Through interviews with leading experts on gun control, an examination of existing gun laws and the inherent politics involved, Raw Story has found that the implementation of the law created to induce states to report such records to the federal government has faced a wall of bureaucracy.

This Kafkaesque maze includes insufficient funding, voluntary reporting, complexities in coordinating between agencies, and what some experts see as a deft bait and switch from the controversial gun lobbying group the National Rifle Association -- which supported the bill’s passage -- and its friends in Congress.

Virginia Tech Massacre and Effort to Tighten Brady Bill

The Brady Center to Prevent Gun Violence, the nation’s largest, non-partisan gun control group, noted last month – the day before the Tucson massacre -- that a report conducted by the National Center for State Courts and SEARCH, the National Consortium for Justice Information and Statistics “estimated that more than 2 million disqualifying mental illness records” have yet to be entered into the National Instant Criminal Background Check System, or NICS.

The press release, however, focused most prominently on the accomplishment that one million mental health records have been entered into the system since the NICS Improvement Amendments Act was signed into law in 2008.

This amendment to the 1993 Brady Bill, which first established the national criminal background check system, sought to strengthen the original law by compelling states to submit records of prohibited persons to the federal government’s computerized tracking system, which in turn could be used by any licensed dealer prior to a prospective gun sale.

Under the grisly glare of the Virginia Tech massacre, which left 32 people dead, Congress shortly thereafter passed the NICS Improvement Amendments Act of 2007. Seung-Hui Cho, a senior at the university and the shooter in the deadly rampage, had been able to purchase two handguns used for the attacks -- even though he had previously been declared mentally incompetent by a judge.

Cho should have been prevented from buying the firearms, but he had passed two Brady background checks because the state of Virginia had failed to submit his prohibitive mental health record to the national background check system.

Experts also made clear to Raw Story that the alleged assailant in the Tucson shooting rampage, Jared Loughner, however mentally disturbed he might be, did not meet the required adjudication standard for mental illness that would prevent him from legally purchasing a firearm. This standard was set in the Gun Control Act of 1968 and remains the guideline today.

Red tape or red meat?

While gun control groups and politicians agree that the absence of at least two million mentally ill disqualifying records from the federal background check system is troubling, they differ on the factors that have led to this breakdown.

Mayors Against Illegal Guns, a national organization of over 500 mayors working to stop the flow of firearms into cities, addressed the issue of insufficient funding after the Tucson tragedy.

In a January press release, the group said, “Many states have made little or no progress reporting largely because Congress failed to follow through with funding. Federal appropriators have granted only 5.3% of the authorized amount from FY 2009 through FY 2011.” (It did also note that FY 2011 appropriations legislation has yet to be enacted.)

Raw Story recently contacted Mayor Michael Bloomberg’s office -- Bloomberg is the co-founder and co-chair of Mayors Against Illegal Guns -- and asked the group why it believes Congress has so underfunded this legislation.

Bloomberg spokesman Jason Post declined to provide a reason, responding via email, “Mayors Against Illegal Guns can’t answer this question – it is a question best posed to Congress.”

In an MSNBC interview with Rachel Maddow last week, however, Mayor Bloomberg, representing Mayors Against Illegal Guns, said that members of Congress are intentionally withholding the necessary funding while purporting to support this gun law.

“They pass a law showing they’re tough on the bad guys, and then they don’t give you the wherewithal to support it,” Bloomberg told Maddow. “Congress only appropriated five percent of the money needed, for example, to put all the data of who has mental problems, who is a drug dealer, who is a convicted felon in a database."

“So they can say to both sides, ‘See, I passed the law that you wanted,’” he said. “And they say to the other side, ‘Wink, wink, I kept her from getting the money so she can’t do anything with it.’ That happens all the time.”

While the Brady Center to Prevent Gun Violence was a staunch proponent for the passage of the NICS Improvement Act, other gun control groups were much less sanguine about the legislation and opposed it at the time.

One such prominent group, the Coalition to Stop Gun Violence, did not support the bill because, as its executive director Josh Horwitz told Raw Story, “It was so obvious this wasn’t going to be funded.”

What especially troubled Horwitz and others leery of the bill was a particular concession made to the NRA.

“The NRA has always wanted what is called ‘relief from disability,’” Horwitz said.

Prior to the NICS Improvement Act, he explained, if individuals had been either involuntarily committed to mental institutions or adjudicated mental incompetents and their names were entered into the NICS system, they remained there permanently. But a provision was added to the bill that allowed such previously prohibited people, if a new psychiatric evaluation deemed them mentally competent, to get their names removed from the background check system.

“So the trade-off,” Horwitz noted, “was that funding for the states, and the states that accept money, also have to do this relief from disability,” which “made the deal sweeter for [the NRA].”

Yet there was no guarantee that, in return, the funding would actually materialize, which, as it turns out, is largely the case to date.

The NRA did not respond to a request for comment on this article.

But the Brady Center to Prevent Gun Violence and the congresswoman who sponsored the NICS Improvement Act, Rep. Carolyn McCarthy (D-NY), argue that the lack of funding and sluggish implementation of the legislation have more to do with bureaucracy than with an intent by the gun lobby to smother its funding.

In an interview with Raw Story, Paul Helmke, the president of the Brady Center to Prevent Gun Violence, called it a “complicated” law and said there are two general issues in states sending in disqualifying records to the federal background check system. Congress making the money available to them is one thing, but the ability of the states to take advantage it is another entirely.

Helmke said that it’s been an “education process” for the states in which they’ve had to figure out everything from which state or local agencies are in charge of mental health records, to how to facilitate the transfer of those records into a centralized location, to the need to alter privacy laws in order to gain their release.

He also noted that after the gun lobby challenged the original Brady Bill, the courts declared that while it was constitutional for the federal government to require federally licensed dealers to ask questions and perform a background check using the NICS system, it was unconstitutional for the federal government to require states to send in the records of individuals disqualified from purchasing firearms for which licensed dealers would be checking.

In other words, it was up to the states whether they wanted to voluntarily send in these records, which is still the case today.

After the tragedy at Virginia Tech, the NICS Improvement Amendments Act to the Brady Bill – since it couldn’t change the constitutional finding by the courts and require states to send this information – instead created a system of financial incentives and disincentives to compel the states to act.

Helmke explained, “They said, ‘If you do this, we’ll give you more criminal justice money. If you end up not doing it eventually, we’ll cut some of the criminal justice funds we give you.’”

He added, “That’s the same way the federal government gets states to lower the drunk driving threshold or set speed limits. They say, ‘We can’t force you to do it, but if you don’t do it we’re going to cut off your highway funds or something.’”

Helmke acknowledged that politics may be at play in underfunding the legislation at the federal level, but he believes much more so the politics driving fiscal conservatism since the economic crash rather than any concerted effort to make a stand against this gun issue.

Rep. Carolyn McCarthy's spokesman Shams Tarek agrees.

“Rather than seeing [Congressional] members explicitly fighting funding, you instead see members and others fighting harder for other budget items, which end up overshadowing NICS,” he wrote in an email.

Both Helmke and McCarthy’s office said that they have seen no evidence of the NRA outwardly opposing the funding.

“In fact,” Tarek added, “the NRA has been consistent in calling for full NICS funding."

Brady Center communications director Caroline Brewer underscored the point.

“You know, this law is part of the Brady Bill and it’s very, very important to us,” she told Raw Story. “So if we had any indication, we would not be shy about letting everybody know that the NRA was standing in the way of this bill being fully funded and effective.”

Other experts, though, such as Mayor Bloomberg, had a hard time believing that the NRA's support of this Act was not merely an act.

--------

Brad Jacobson is a contributing investigative reporter for Raw Story. You can follow his Twitter feed at twitter.com/bradpjacobson.

Photos: Ken Stewart, Wikimedia Commons; Virginia Tech shooter Seung Hui Cho, alleged Tucson shooter Jared Loughner, Columbine High School shooters Eric Harris and Dylan Klebold.