Many Americans are hopeful that come January the newly elected Democratic majority in the House will work to keep guns out of the hands of potential mass shooters. Early signals on this front, however, give little cause for optimism.
Two days after the midterm election Rep. Nancy Pelosi, the presumptive speaker, said House Democrats will prioritize “bipartisan legislation to have common-sense background checks” on firearm sales. The legislation she’s referring to is the Public Safety and Second Amendment Rights Protection Act, which would expand the existing background check system for gun buyers. This is not universal background check legislation; it would just cover private sales that are commercially advertised, such as at gun shows, over the internet or through classified ads. Worse, the bill includes National Rifle Association-drafted language that bars the federal government from registering privately held firearms.
Given the overwhelming success of Democratic congressional candidates who championed gun control in the midterm elections, this feels like a weak lead for Pelosi and her caucus. The bill also suffers from a fundamental flaw: It relies on a system replete with dangerous loopholes.
Since being instituted in 1998, the National Instant Criminal Background Check System (NICS) has consistently failed to block gun sales to individuals with a history of violence. An FBI study of 63 mass shooting cases between 2000 and 2013 found that only 2% of the guns used were purchased illegally, and 6% were stolen. By comparison, 40% of the guns were purchased legally — meaning the buyer passed a background check — by people intending to use them in the attack they were planning. (Another 35% of guns were already owned by the attacker.)
At the same time, the FBI found that mass shooters displayed, on average, four or more “concerning behaviors” that had been noticed by others. These behaviors included symptoms of mental illness, impulsivity, physical aggression, reckless behavior with firearms and discussion of threats.
The NRA would love to stick with the instant check system, which it designed with all its failings more than 25 years ago. The original Brady Bill, passed after the attempted assassination of President Reagan, called for a waiting period on handgun purchases during which state or local law enforcement officials would conduct a background investigation into the buyer. These investigations didn’t rely on computerized criminal and mental health records, which few states had at the time. Under the interim provisions of the Brady Law from 1994 to 1998, law enforcement officers researched the histories of gun buyers by talking to families, medical professionals, courts, psychiatric institutions, and other law enforcement officers. That changed in 1998 when, thanks to the NRA’s allies in Congress, these multi-day investigations were replaced by the instant check system.
The NICS process prioritizes speed over thoroughness and public safety. Here’s how it works: Federally licensed firearms dealers contact an FBI call center in Clarksburg, W.Va., and provide the name, race, gender and date of birth of a prospective gun buyer. The FBI checks three separate computer databases for past criminal offenses or involuntary commitments to psychiatric institutions. The agency then responds with one of three commands: approve, deny or delay. Within two minutes, 92% of NICS checks are completed.
Federal law also allows many people with a record of violent crime to buy guns, including those with misdemeanor convictions for assault or battery, sex offenses and stalking; and domestic abusers who have been subject to past restraining orders but currently are not. Additionally, NICS allows individuals in crisis to buy guns, including dangerously mentally ill individuals with prior voluntary commitments and many alcohol and substance abusers. Gun sales to such individuals benefit only the bottom line of the gun industry.
The gun lobby’s contribution to the Public Safety and Second Amendment Rights Protection Act — a ban on national firearms registration — is telling. The NRA knows that requiring a license to buy a gun and registration to keep one — with the training, testing and background investigation that would entail — is the most effective way to keep firearms out of the hands of violent individuals. In other democracies, this typically results in significantly lower rates of gun death and overall homicide than the U.S. Likewise, a just-published study from researchers at UC Davis and the Johns Hopkins Center for Gun Policy and Research concluded that a universal instant check system implemented in California did less to reduce homicide and suicide rates in the state than “permit-to-purchase” (licensing) laws in Connecticut and Missouri. Why? Because permit-to-purchase laws require gun buyers to deal directly with law enforcement agencies in their communities.
For too long, Democrats have been manipulated into promoting the NRA’s failed computerized screening process for gun buyers in the name of “bipartisanship.” Pelosi would be smart to keep Democrats’ pro-gun-control base energized and mobilized through the 2020 election. That can’t be accomplished with half-baked, meek legislation. If Pelosi can’t see that gun control is a winning issue, House Democrats should replace her with someone who does and is ready to go big.
Republicans in the Senate and White House are highly unlikely to act on whatever gun control legislation is ultimately passed by the Democratic House—no matter how modest. So shouldn’t Democrats set out to craft a policy that, one day, can actually achieve the goal of disarming violent people in America?