“You know, there was a loophole, my opponent voted for it, Senator Sanders, that at the end of three days, business days, you get that gun whether they have finished the background check or not. The killer in Charleston who brought that gun, if they had just spent a little more time, it would’ve been discovered, he should not have been able to buy the gun, because he had a federal record.”
— Former secretary of state Hillary Clinton, interview with CNN, Jan. 12, 2016
Clinton repeatedly has attacked her rival for the Democratic presidential nomination, Sen. Bernie Sanders (I-Vt.), on gun issues. It is potentially a ripe target, given that the rural-state lawmaker occasionally supported positions advocated by the National Rifle Association.
This statement jumped out at The Fact Checker, as Clinton is drawing a direct link between a vote taken by Sanders to a recent gun tragedy — the June 17, 2015, killing of nine people by Dylann Roof at a historic black church in Charleston, S.C.
Is her criticism on target?
Roof legally purchased his .45-caliber Glock pistol from a store, but the FBI later said he should have failed the background check because he had been charged with possessing Suboxonem, a Schedule III narcotic, without a prescription. However, because of clerical mistakes, the FBI said the examiner did not get hold of the report before the three-day waiting period ended, so the store went through with the purchase.
(The original FBI statement admitting that the error incorrectly referred to a felony drug charge, but it was actually a misdemeanor for possession; Roof did not admit to being an addict. In a statement to The Fact Checker, the FBI said Roof would have been denied a gun based on an “inference of current use.”)
Some gun-control advocates have starting calling the three-day waiting period the “Charleston loophole.” But where did that three-day window come from?
It was in the final version of the Brady Handgun Violence Prevention Act that was passed by Congress in 1993 and signed into law by President Bill Clinton.
As we have noted before, Sanders voted repeatedly against the Brady bill, which in its original version had a 10-day waiting period. But he did vote for an NRA-backed amendment, sponsored by then-Rep. George Gekas (R-Pa.), that altered the Brady bill to require instant criminal background checks five years after enactment, even though the technology did not exist at the time. The waiting period would sunset within five years, once the system was expected to be operational.
Until passage of the amendment, the Brady bill at that point had a seven-day waiting period. But the amendment requiring the instant background system also cut the processing time to just 24 hours if the instant background system didn’t come back with an answer:
A gun dealer “shall not transfer a firearm to any other person who is not such a licensee, unless–
(A) before the completion of the transfer, the licensee contacts the national instant criminal background check system established under section 3 of such Act;
(B)(i) the system provides the licensee with a unique identification number; or (ii) 1 business day (as defined in subsection (s)(8)(B)) has elapsed since the end of the business day on which the licensee contacted the system, and the system has not notified the licensee that the receipt of the handgun by such other person would violate subsection (g) or (n) of this section or any State or local law”
Later, after negotiations between the Senate and the House, the final version of the Brady bill emerged with a three-day period to allow law-enforcement officials to process the information. It was a bitter pill for supporters.
“We always thought the cooling-off period was important,” recalled Richard M. Aborn, president of Handgun Control at the time. But he said the NRA pushed for the Gekas amendment once it realized that the Brady law was on track for passage.
“It kept getting whittled down,” first from 10 to seven days, Aborn said. The Brady supporters had launched a campaign titled “seven days to save a life,” but even so, “it just kept getting shorter and shorter.”
In the specific case of Roof, the FBI examiner became confused over South Carolina geography, initially contacting the wrong county court to find out the status of the criminal case pending against him. Would an extra four days have made a difference in sorting out the right legal venue? No one knows for sure, but it’s certainly possible.
The Sanders campaign did not respond to a request for comment. The candidate now says he supports universal background checks.
The Pinocchio Test
The vote in question took place almost a quarter-century ago, but there is a relatively straight line from the 1993 vote to the 2015 shooting.
While Sanders did not specifically vote for a three-day period, he did vote for an even shorter one-day window. As a result of the amendment he supported in the House, the seven-day window was erased by the instant background system and the time allowed for extensive background checks that emerged from House-Senate negotiations was just three days. Then Sanders ended up voting against requiring any background checks at all.
Clinton earns an elusive Geppetto Checkmark.
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