But the efficiency comes with a price. NICS has failed spectacularly in one high-profile shooting after another, allowing individuals with a history of violence and/or severe mental illness to legally purchase weapons later used in a slaughter.
This article originally appeared in Salon.
By ignoring this problem with NICS, gun control advocates seem to be forgetting the history of the Brady Bill and the method by which computer background checks came into being. The NRA, not the gun control movement, was the creator of the FBI call-in system. The system was designed to fail from the start.
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The deliberate mediocrity of our background checks has its roots in an era when stopping violent gun buyers was a hopeless exercise.
President Lyndon B. Johnson, the Great Persuader, lobbied hard for the Gun Control Act of 1968, which he said should prevent “hardened criminals, or alcoholics, or drug addicts or mentally unstable” citizens from buying guns. But Congress sent him a weak bill, which he reluctantly signed on Oct. 22, 1968, with an accompanying statement:
This bill — as big as this bill is — still falls short, because we just could not get the Congress to carry out the requests we made of them. I asked for the national registration of all guns and the licensing of those who carry those guns. For the fact of life is that there are over 160 million guns in this country — more firearms than families. If guns are to be kept out of the hands of the criminal, out of the hands of the insane, and out of the hands of the irresponsible, then we just must have licensing. If the criminal with a gun is to be tracked down quickly, then we must have registration in this country. The voices that blocked these safeguards were not the voices of an aroused nation. They were the voices of a powerful lobby, a gun lobby, that has prevailed for the moment in an election year. But the key to effective crime control remains, in my judgment, effective gun control. And those of us who are really concerned about crime just must — somehow, someday — make our voices felt. We must continue to work for the day when Americans can get the full protection that every American citizen is entitled to and deserves — the kind of protection that most civilized nations have long ago adopted … We have made much progress — but not nearly enough.
When Americans bought guns, they filled out a form with questions about their criminal and mental health history. The problem was that no one was tasked by the Gun Control Act with checking buyers’ answers for validity. Forget about licensing and registration. America’s strategy to keep dangerous people from getting guns was an honor system, and Johnson knew it.
Thirteen years later, on March 30, 1981, John Hinckley shot President Ronald Reagan, Press Secretary Jim Brady, and two law enforcement officers outside the Hilton Hotel in Washington. Reagan was hospitalized and nearly died. Brady was catastrophically injured and disabled for the rest of his life. The officers recovered.
Hinckley, a severely mentally ill college dropout, purchased his handgun from a Dallas pawnshop for $47.95. Americans were outraged that a man this deranged could legally arm himself without having any type of background check. Within weeks, legislation had been introduced in Congress to create a federal waiting period for handgun buyers while their criminal and mental health background would be checked by law enforcement.
The effort didn’t find traction, however, until Jim Brady and his wife Sarah began working with Handgun Control, Inc. in 1985 (HCI later became the Brady Campaign to Prevent Gun Violence). Two years later, the Brady Handgun Violence Prevention Act, dubbed the “Brady Bill,” was introduced in Congress for the first time by Rep. Ed Feighan, D-Ohio. The bill proposed creating a waiting period of seven business days for gun purchases, during which time state and local law enforcement (the people who know their communities the best) would conduct background investigations to determine if buyers were prohibited purchasers. This thorough look into a gun buyer’s criminal and mental health background would include contacts with courts, psychiatric institutions, character witnesses, physicians and other law enforcement agencies.
The NRA opposed the Brady Bill outright, claiming it would “impose total, strict gun control on all America.” The bill, however, was overwhelmingly popular with the public and supported by a large coalition of police groups, the powerful Law Enforcement Steering Committee headed by Baltimore police chief Neil Behan.
Author Osha Gray Davidson writes that on one occasion, 120 uniformed officers walked through the U.S. Capitol building handing out buttons that read “Cops Know Seven Days Can Save a Life.” The push to check gun buyers’ background carried an air of inevitability about it. “There is a great deal of interest in Congress in having something positive to vote for,” NRA lobbyist Jim Baker bemoaned. The NRA needed a plan to mortally wound whatever background check bill eventually got across the finish line.
In September 1988, they got one. Rep. Bill McCollum, R-Fla., introduced an amendment as a substitute to the Brady Bill in the House of Representatives. McCollum’s substitute tasked the U.S. attorney general with studying the feasibility of creating a point-of-sale “instant check” hotline for licensed dealers to call to screen handgun purchasers. A buyer’s name and social security number would be checked against a list/database of all felons and fugitives in the United States in a matter of minutes -- theoretically -- to determine if the sale could go through.
To the layman, the idea might have seemed feasible, but the NRA knew it would never work as promised. Very few states had computerized felony records in 1988. Mental health records were all on paper. When McCollum’s legislative director, Don Morrissey, was asked point-blank if his boss’s amendment was designed to torpedo the Brady Bill, his response was, “I wouldn’t quibble with that assessment. I think the Brady Bill is silly. It won’t work.”
Nonetheless, the NRA’s bait-and-switch ploy worked. The House passed McCollum’s substitute and voted the tougher Brady Bill down. A mandate to study an instant-check study then became law as part of an omnibus crime bill shortly thereafter.
In November 1989, Attorney General Richard Thornburgh submitted DOJ’s findings on the viability of an instant check system to Congress. The study’s assessment was blunt: “A comprehensive, accurate system for identifying felons at the point of sale cannot be fully accomplished in the near term.” The same day the study was released, Jim Brady told a Senate subcommittee, “I had no choice to be here today because too many members of Congress have been gutless on this issue.”
An unexpected twist, however, changed Brady’s fortunes. On March 28, 1991, former president and conservative icon Ronald Reagan announced his support for the Brady Bill during a speech at George Washington University Medical Center. “You do know that I’m a member of the National Rifle Association,” Reagan told those in attendance. “But I want you to know something else, and I am going to say it in clear, unmistakable language: I support the Brady Bill and I urge the Congress to enact it without further delay.”
The following day, Reagan published an op-ed in the New York Times titled “Why I’m for the Brady Bill.” Referring to John Hinckley’s assassination attempt, he wrote, “This nightmare might never have happened if legislation that is before Congress now — the Brady bill — had been law back in 1981.”
The NRA still had its poison pill. On May 8, 1991, West Virginia Rep. Harley Staggers introduced an amendment to the Brady Bill which called for the immediate implementation of a nationwide “instant” criminal background check hotline. The amendment gave the Department of Justice (DOJ) just six months to put up the hotline — despite the agency’s assessment less than two years earlier that such a project could not be accomplished in the near term. An ensuing congressional study was even more pessimistic, estimating it would take five to 10 years.
The Staggers Amendment was defeated, and House Majority Leader George Mitchell, D-Maine, and Senate Minority Leader Bob Dole, R-Kan., forged a compromise on background checks that could pass both the House and Senate. The resulting legislation reduced the waiting period for handgun purchases from seven to five days, and called for the waiting period to be scrapped altogether once the instant check system was launched.
The NRA opposed even this modest plan. Meanwhile, HCI’s lone colleague in the gun control movement, the National Coalition to Ban Handguns (later to become the Coalition to Stop Gun Violence), was losing patience with this sausage-making process (at one point the Brady Bill was known as the Dole-Metzenbaum-Mitchell-Domenici-Kohl-Thurmand-Gore Modification of the Mitchell-Kohl-Gore-Metzenbaum Provision). "The Brady Bill is a nice, innocuous piece of legislation,” NCBH founder Mike Beard told author Osha Gray Davidson. “To us, it's a minor step forward."
The Mitchell/Dole compromise passed both the House and Senate, but the omnibus crime bill it was attached to died in the Senate after President George H.W. Bush threatened a veto. The NRA had survived to fight one more round.
In November 1993, the Brady Bill was signed into law by President Bill Clinton in a form similar to the Mitchell/Dole compromise. The FBI was tasked with setting up the NICS database to screen handgun buyers and long gun buyers (a win for gun control advocates) by November 1998. Gun dealers were authorized to proceed with sales if the FBI did not respond to a NICS query within 72 hours. Congress authorized $200 million to help states computerize their criminal records.
The NRA had pulled off a significant victory: Gun control advocates had originally hoped for a seven-day waiting period on handgun purchases during which time state and local law enforcement professionals would do real legwork to investigate the criminal and mental health background of buyers. But once NICS launched in a few short years, they’d be left with a single ping to a federal computer database; a background “investigation” with little or no human interaction that would be completed in about 90 seconds in most cases.
The NRA took to the courts to have the Brady Law (and their own instant check system) struck down. In 1994 and 1995, the organization funded lawsuits in Arizona, Louisiana, Mississippi, Montana, New Mexico, North Carolina, Texas, Vermont and Wyoming, using radical sheriffs like Richard Mack and Jay Printz as plaintiffs. The matter was eventually settled in the Supreme Court in 1997 in the case of Printz v. United States. In a 5-4 majority opinion written by Justice Antonin Scalia (who would later disrupt longstanding Second Amendment jurisprudence in D.C. v. Heller), the Court refused to toss out the Brady Law, but agreed with the NRA on an important point: The federal government could not mandate that state and local law enforcement officials conduct background investigations on gun buyers during the Brady Law’s five-day waiting period because it violated the 10th Amendment. State and local officials could voluntarily conduct such investigations, however.
When the National Instant Criminal Background Check System was officially launched in November 1998, the database was missing millions of disqualifying records that the 50 states — bolstered by the ruling in Printz v. United States — had yet to submit to the FBI. The problem was so profound that today, 20 years later, gun control organizations are still lobbying for legislation to incentivize states (and even federal agencies) to get criminal, mental health and domestic violence records into NICS.
The NRA was certainly exaggerating in its assessment of the Brady Bill as “total, strict gun control.” But the gun control movement also exaggerated. The background check system was full of loopholes, projecting a dangerously misleading sense of potency.
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The gun control movement’s obsession with expanding the NICS system crystallized after the mass shooting at Columbine High School on April 20, 1999. The two shooters obtained their firearms through unregulated private sellers because they were too young to pass the background check required by licensed gun dealers. Most Americans learned for the first time that individuals could legally sell firearms in off-the-books transactions.
The private sales loophole stemmed from the 1968 Gun Control Act, which allowed individuals not “engaged in the business” of dealing firearms to sell guns privately without conducting background checks on buyers or maintaining any records of sale. What did “engaged in the business” mean? The Gun Control Act was silent on this question.
Members of Congress felt intense pressure to respond to the Columbine shooting and nearly moved legislation to regulate private sales at gun shows to President Clinton’s desk for his signature. In August 1999, however, Utah Sen. Orrin Hatch was able to kill the legislation in conference committee at the last minute to the delight of NRA lobbyist James Baker, who remarked “nothing is better than anything.”
Since Columbine, there have been other examples of high-profile shooters who obtained their firearms through private sales, but they are few and far between. This is because many individuals with a history of violence are able to pass instant checks and legally purchase firearms. They don’t need to exploit the private sales loophole.
Parkland shooter Nikolas Cruz is just one recent example. The roll call of killers who have defeated the instant check system is almost without end: James Holmes, Jared Loughner, Seung-Hui Cho, Omar Mateen, Aaron Alexis, Elliot Rodger, Wade Michael Page, Ian Stawicki, Steven Kazmierczak. All of them were approved by NICS despite displaying multiple red flags for unstable, violent behavior that were picked up by family, friends, classmates, law enforcement or the military. There should be ample doubt about the viability of instant screening.
Advocacy for expanded or universal background checks is not without merit, however. Our instant check system might be premised on completing sales as quickly as possible, but there’s no denying it has saved many lives. To date, NICS has stopped more than 1.5 million prohibited purchasers from buying guns through federally licensed dealers. This figure does not include denials by more than a dozen “point of contact” states that process their own background checks (and typically search additional state criminal databases). The Brady Campaign to Prevent Gun Violence says the total number of denied, prohibited purchasers exceeds 3 million. Some level of screening on a gun sale is obviously better than no screening at all. But why is the gun control movement so adamant on keeping an instant check system designed by the NRA in perpetuity when safer alternatives are available?
And why do we seem wed to prohibited categories for gun buyers that were drawn up a half-century ago, when the United States government described mentally ill Americans as “mental defectives”?
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Breaking our obsession with NICS and stopping all violent individuals from buying guns requires fresh ideas. Here are three:
1) Institute a national licensing and registration system. President Johnson wasn’t tilting at windmills in 1968. Virtually every other democracy has a longstanding, national licensing process for gun owners and a registration requirement for their firearms. These systems are the primary reason why other democracies have dramatically lower rates of gun death (and overall homicide) than the United States.
The licensing process involves a waiting period and a background investigation by law enforcement, which is not limited to computer database queries (e.g., interviews with friends/family/co-workers, requests for letters from physicians, safety training requirements, etc). The registration process means gun owners are 100 percent responsible for their weapons. They have to report lost or stolen firearms to law enforcement promptly and are unable to sell or transfer a registered firearm to another party without verifying the buyer’s background and changing “title” (registration) on the weapon.
The Printz v. United States ruling wouldn’t be an impediment to such a system because it would be run by the federal government rather than state and local officials (although licensing/registration would certainly benefit from cooperation between the three parties).
2) Redraw the prohibited categories for gun buyers. Although New Jersey Sen. Frank Lautenberg was able to enact an amendment into law in 1996 that added individuals under active restraining orders and those convicted of misdemeanor crimes of domestic violence to the list of prohibited purchasers in the Gun Control Act, there are still many categories of people at high risk for violent behavior who can legally buy guns today. This includes violent misdemeanor offenders, abusive dating partners, stalkers, and domestic abusers under temporary restraining orders. Redrawing the prohibited categories for gun buyers would allow us to use the best research available today to determine who is more likely to be violent in the future.
This wouldn’t necessarily mean just adding new categories to the prohibited list. It could also involve allowing some people who are currently prohibited because of disability to buy and own firearms again. For example, an individual who was involuntarily committed years ago, but who has improved with regular treatment and is now mentally healthy.
The process of redefining prohibited purchasers is already underway in piecemeal form. Sen. Amy Klobuchar, D-Minn., Rep. Dan Donovan, R-N.Y., Rep. Debbie Dingell, D-Mich., and other members of Congress have introduced legislation that would prohibit the following parties from buying/owning firearms: those under temporary restraining orders, individuals convicted of hate crimes, non-married partners under restraining orders and stalkers with misdemeanor convictions.
3) Reinstate a federal waiting period for gun sales. This could be a waiting period of seven days, like the original Brady Law, or some other duration. Because a federal mandate would be blocked by the Prinz v. United States ruling, local and state law enforcement officials would be incentivized to conduct background investigations on gun buyers (for the first time since 1994-1998) via a carrot-and-stick approach using federal grants. Gun dealers would be required to get a yes-or-no answer from state and local law enforcement before selling a firearm.
There is nothing inevitable about either the instant check system or our outdated, prohibited categories for gun buyers. If we want to have a system that consistently stops individuals with a history of violence from legally buying guns in the United States of America, we can — like every other free society.
