Sifting through the gun rhetoric since the mass shooting in a Florida high school Feb. 14, we noticed politicians and groups on all sides of the debate often turn to the same topic: background checks.
Federally licensed firearms dealers have been required to run background checks on gun buyers since 1994, when the Brady Handgun Violence Prevention Act took effect. Almost all of these searches are done through the National Instant Criminal Background Check System (NICS), a database launched by the FBI in 1998 as part of the Brady law.
According to FBI data, more than 253 million background checks were conducted from Nov. 30, 1998, when the NICS launched, through the end of 2016. Nearly 27.5 million checks, or 11 percent of the historical total, were conducted in 2016 alone.
A separate report from the Bureau of Justice Statistics shows that more than 3 million, or 1.5 percent, of gun applications were denied between the Brady law’s effective date in 1994 and the end of 2015.
Federal law prohibits the transfer of guns to people convicted of a felony, those convicted of misdemeanor domestic violence offenses, fugitives from justice, users of controlled substances, those who have been ruled mentally incapacitated, unauthorized immigrants, people dishonorably discharged from the military and others. But there are well-documented issues with the NICS database, because not all states report all their data on convictions or mental health adjudications.
With that in mind, we’re going to look at claims from President Trump, National Rifle Association Executive Vice President Wayne LaPierre and Rep. Jamie Raskin (D-Md.), who have all addressed background checks in the days since the Florida shooting. As is our practice with quick roundups, no Pinocchios will be awarded; readers can make their own judgments.
“I will be strongly pushing Comprehensive Background Checks with an emphasis on Mental Health. Raise age to 21 and end sale of Bump Stocks! Congress is in a mood to finally do something on this issue – I hope!” (in a tweet, Feb. 22, 2018)
Trump is not the first to call for a stronger screening system for potential gun owners, but it’s not clear what he means by “comprehensive background checks with an emphasis on mental health.” The White House did not respond to a request for comment. (The NRA is calling for improvements to NICS as part of a bill that has passed the House that would make permits to carry a loaded concealed gun issued in one state valid in all other states.)
Federal law already prohibits the transfer of a firearm to anyone who “has been adjudicated as a mental defective or has been committed to any mental institution,” although states have had difficulties supplying records of mental health adjudications to the NICS.
“Most states are not providing noncriminal records, such as those related to positive drug test results for persons on probation,” according to a report from the Government Accountability Office covering 2004 to 2011.
“Mental health records not related to criminal case dispositions are maintained by agencies and organizations outside of criminal justice, such as private hospitals, state mental institutions, state health agencies, and civil courts,” according to a 2013 report by the nonprofit National Consortium for Justice Information and Statistics. “Since many of the records were not developed for criminal justice use, there are privacy and other challenges to sharing those records, including some records with missing required personal identifying data.”
At least 16 states have improved their reporting of mental health adjudications since 2013, according to the National Shooting Sports Foundation. Some groups and politicians say congressional action also is needed.
Trump also signed legislation rolling back a rule from President Barack Obama’s term that banned gun sales to some people collecting Social Security disability benefits based on a mental health condition. (More on this below.)
“Whether we are Republican or Democrat, we must now focus on strengthening Background Checks!” (in a tweet, Feb. 20)
Far from strengthening the background check system, the Trump administration has taken several actions that could be described as weakening it.
Trump’s proposed budget for fiscal 2019 would cut $12 million for a program that awards grants to states to improve their NICS reporting, a reduction from $73 million to $61 million.
The White House did not answer our questions, but an anonymous administration official told ABC News that Trump’s budget “fully funds” the NICS and “said the decrease in proposed funding is designed to match the level of spending requested by states that qualify for the grants.”
Under Trump, the Justice Department also narrowed the definition of a “fugitive from justice.” FBI data show that felony convictions are the most common reason for failing a background check, and the second most common reason is being a fugitive from justice.
The new definition of the term applies only to people with an open warrant who have crossed state lines. Because of this change, the FBI purged tens of thousands of people from the NICS.
White House press secretary Sarah Huckabee Sanders said Feb. 19 that the president supports a bill sponsored by Sens. John Cornyn (R-Tex.) and Chris Murphy (D-Conn.) that encourages better reporting to the NICS by federal agencies and states. A similar bill with other provisions has passed the House.
But the Cornyn-Murphy bill mostly reinforces existing reporting requirements. What’s new is that it eliminates bonus pay for political appointees at federal agencies that do not report all the required data to NICS from fiscal 2019 through 2022, and authorizes $125 million a year for states that take steps to improve their NICS reporting from fiscal 2018 through 2022.
Although it authorizes that level of funding, the Cornyn-Murphy bill does not appropriate those funds. A previous version of this law authorized as much as $1.25 billion in NICS grants for the states, but Congress ended up appropriating far less. A few states ended up collecting $50.4 million from fiscal 2009 to 2012, according to the National Consortium for Justice Information and Statistics, in part because of some requirements for states that many have difficulty meeting.
“The National Rifle Association originated the National Instant Check System. It was our bill.” (remarks at the Conservative Political Action Conference, Feb. 22)
Speaking at CPAC, LaPierre said there would be no NICS without the NRA.
The NRA had opposed the Brady gun bill but in the end was one of the shaping forces behind it, offering several amendments. Instead of an initial proposal to impose a five-day waiting period to buy a gun, the NRA agreed to compromise language that ultimately created the NICS.
After the Brady gun bill was enacted, the NRA joined a case, Printz v. United States, as an amicus and argued that the entire law, including the NICS provision, should be struck down for violating the 10th Amendment. The law allegedly “commandeered” the states to perform background checks for the federal government from 1994 to 1998, the period in which the NICS had not yet launched.
Once the NICS was up and running, the NRA sued, arguing that the law effectively set up a “gun registry.” A federal appeals court dismissed the lawsuit. Federal law separately provides for disposing of NICS records after a background check.
A spokesman for the NRA did not respond to a question about this issue, but it seems like a stretch to say that the NICS “was our bill,” as LaPierre said, considering that it came about as compromise language to avoid a five-day waiting period for gun purchases and that the NRA took a hostile position to the Brady law in the courts — and at one point worked to strike it down as unconstitutional.
“They [the media] don’t report that 38 states submit less than 80 percent of their felony convictions to the system, leaving more than 7 million felony convictions in the dark.” (remarks at CPAC, Feb. 22)
This statistic neatly illustrates the deficiencies in the NICS system — or it would, except it’s several years out of date. We asked the NRA where LaPierre got these figures, and a spokesman pointed us to a 2013 report from the National Consortium for Justice Information and Statistics.
“Felony convictions are the largest category of firearm transfer denials. Yet, as of December 31, 2010, a survey of the states … found that only seven states and Guam reported that 90 percent or more felony charges have a final disposition recorded in their criminal history databases,” that report says. “An additional five states had between 80 percent and 90 percent dispositions for felony charges.”
Notice how LaPierre is referencing a study about the year 2010. The same group has published more recent statistics for the intervening years through 2016.
“Twenty-one states report that 80 percent or more of all felony arrests within the criminal history database have final dispositions recorded,” according to the latest report.
So it’s down from 38 to 29 states at last count.
As for the 7 million number for felonies that have not been reported to the NICS, the NRA said it came from the same report from the National Consortium for Justice Information and Statistics. Since it’s an estimate based on 2010 figures, it’s outdated, as well. For what it’s worth, Congress pegged the number much higher, at 21 million, in 2008. [Update: We previously said that we didn’t know where the 7 million figure came from, but the NRA sent us a report with this number. That report is based on 2010 figures, and the group that published it said the 7 million estimate is no longer up to date.]
The NICS clearly suffers from incomplete records. Most background checks on the NICS are conducted by the states, not federal agencies, but a 2016 audit by the Justice Department’s inspector general found that in 630 of 631 selected cases from 2008 to 2014, states did not properly update the database or inform the FBI of the background check’s outcome. “These failures mean the NICS database is incomplete, and increases the risk that individuals found by states to be prohibited purchasers could be able to purchase firearms in the future,” according to the audit.
Rep. Jamie Raskin (D-Md.)
“One year ago GOP passed and Trump signed legislation promoting greater access of the adjudicated mentally ill to purchase firearms. Their effort to blame mental illness for the Parkland massacre is shameful and self-incriminating.” (in a tweet, Feb. 16)
In February 2017, Trump signed legislation overturning an Obama-era rule that barred gun sales to some people collecting Social Security disability benefits because of a mental health condition. Under the Obama rule, Social Security recipients who designated a friend or relative to manage their finances were referred to the Justice Department for potential inclusion on the NICS.
Disability rights advocates and the American Civil Liberties Union opposed the Obama rule. Ari Ne’eman, chief executive of MySupport.com, said it was “overbroad, contributed nothing to minimizing gun violence, and set a concerning precedent that an unrelated administrative determination could be used to label a person as potentially dangerous.”
“Having a neurological or psychiatric disability alone has no bearing on an individual’s likelihood of violence,” Ne’eman said. “Similarly, there is absolutely no reason to believe that a person selecting a family member or friend to help them manage their finances should be seen as a danger to the public.”
Raskin said his description of the bill — “legislation promoting greater access of the adjudicated mentally ill to purchase firearms” — was accurate despite the policy difference he had with disability advocates. “This is, of course, precisely what the legislation did (among other things) by reversing the Obama administration rule and I have not heard anyone challenge that interpretation of the legislation,” Raskin said.
Raskin said he voted no on the bill rolling back the Obama rule out of “a paramount concern for public safety.” He seems to be indicating that, although not everyone collecting mental disability benefits is dangerous, some are.
He added: “Most gun violence is not connected to mental illness. I want to be clear about that and America should not be distracted by the president’s narrow focus on mental illness.”
The Bottom Line
The NICS database is a hot topic these days, but readers should be wary of the claims they hear. In some cases, such as Trump’s, the statements are vague and raise more questions than they answer. There’s also a contradiction: Trump proposed a budget that cuts funding for a NICS grant program that helps states improve their reporting. But he also supports separate legislation to authorize significant new funding for these state grants.
In LaPierre’s case, the statistics are outdated and portray the NICS database as spottier than it really is. LaPierre also claims the NRA helped institute the NICS, even though the gun group initially opposed the Brady Act, agreed to the NICS provision as a compromise and then tried to strike down the entire law in the courts.
In Raskin’s case, readers might get the impression that Trump signed a bill to arm the mentally ill, even though the reality is much more nuanced. Disability rights advocates say the rule Trump was rolling back unfairly targeted the mentally ill and removed rights for many eligible gun owners.
In sum, the NICS database may have its shortcomings, but be careful where you go to learn about them.
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