Background Checks on Gun Buyers Were Designed to Fail — by the NRA
Making background checks universal isn’t enough if the checks themselves don’t work.
Since America’s instant check system for gun buyers went online in November 1998, the gun control movement and its allies in Congress have made the expansion of the system their primary focus. This expansion has been promoted as the way to stop dangerous people from buying firearms.
The National Instant Criminal Background Check System (NICS) was designed to be fast and easy. Federally licensed dealers contact an FBI call center in Clarksburg, West Virginia and provide the name, race, gender and date of birth of a prospective gun buyer. The FBI checks to see if the buyer has been added to any of three separate computer databases of past criminal offenders and persons adjudicated for mental illness. In 90% of cases, these checks are completed in less than two minutes.
This efficiency comes with a high price. Since its launch, NICS has failed spectacularly in one high-profile case after another, allowing individuals with a history of violence and/or severe mental illness to pass background checks and legally purchase firearms later used in mass killings, murder-suicides and other horrors.
Gun control advocates have been conspicuously silent about the problems with NICS, but these problems were predictable from the very start. It was the National Rifle Association that created the instant check system, not gun control proponents, and it was purposely designed to fail.
On October 22, 1968, President Lyndon Baines Johnson sat down to sign the biggest gun control bill in the history of the United States, the Gun Control Act. But as he put pen to paper he felt a twinge of genuine regret.
The president had lobbied Congress hard for a tough gun control bill in response to growing crime and the tragic assassinations of President John F. Kennedy, Martin Luther, King, Jr. and Bobby Kennedy. Johnson wanted legislation that would stop “hardened criminals, or alcoholics, or drug addicts or mentally unstable [Americans]” from getting guns. He bragged to federal legislators about a licensing law in New Jersey that denied 540 dangerous people access to firearms in its first six months of operation.
To Johnson, gun control was essential to ensuring individual freedom. “The passage of an effective gun control statute can be an important step in providing a climate of security for all our citizens,” he wrote. “It can help them enjoy the right to travel unmolested, to walk without fear on the streets of our cities, and to be secure in their homes. Its passage will avoid senseless tragedy, and promote the safety of the American people.”
But Congress failed to live up to Johnson’s lofty vision. In his signing statement, the president wrote:
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 … 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.
The Gun Control Act did prohibit certain categories of dangerous people from buying guns (convicted felons, individuals with involuntary commitments, fugitives, non-citizens, and those discharged dishonorably from the military), but these provisions of the law were unenforceable. When Americans bought guns, they filled out a form with questions about their criminal and mental health history. The problem was the Gun Control Act didn’t task anyone with checking buyers’ answers for veracity.
Twelve and a half years later, on March 30, 1981, John Hinckley, Jr. shot President Ronald Reagan, press secretary Jim Brady, and two law enforcement officers outside the Hilton Hotel in Washington, D.C. 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 drop-out, purchased the handgun used in the attack from a Dallas pawnshop for $47.95 after lying about his permanent address and state of residence on ATF Form 4473. Americans were outraged that a man this deranged could acquire a handgun so easily. Within weeks, legislation was introduced in Congress to create a federal waiting period for handgun buyers so their criminal and mental health background could be verified by law enforcement.
The effort didn’t gain traction, however, until Jim Brady and his wife Sarah began working with Handgun Control, Inc. in 1985 (later known as 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-OH). 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 gun buyers in their communities the best) would conduct a background investigation to determine if the applicant is a prohibited purchaser. This process would include contacts with courts, psychiatric institutions, character witnesses (family, friends, co-workers), physicians, other law enforcement agencies, etc.
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 powerful coalition of police groups, the Law Enforcement Steering Committee headed by Baltimore police chief Neil Behan.
Author Osha Gray Davidson recalled one occasion when 120 uniformed officers walked through the U.S. Capitol building handing out buttons that said “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 admitted. The NRA needed a plan to mortally wound whatever background check bill eventually got across the finish line.
By September 1988, the NRA had developed one. Rep. Bill McCollum (R-FL) introduced an amendment as a substitute to the Brady Bill in the House of Representatives that 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 would be checked against a database of felons and fugitives in the United States in a matter of just minutes — theoretically — to determine if a sale could go through. No waiting period was required.
To the layman, the idea might have seemed feasible, but the NRA knew it wouldn’t work. Very few states had computerized felony records in 1988. Mental health records were entirely on paper. When Rep. McCollum’s legislative director, Don Morrissey, was asked point-blank if his boss’s amendment was designed simply 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 legislation in lieu of the Brady Bill. McCollum’s mandate for a study on instant gun checks became law as part of an omnibus crime bill shortly thereafter.
In November 1989, Attorney General Richard Thornburgh submitted that study to Congress. His 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 Jim and Sarah 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 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, however. On May 8, 1991, Democratic West Virginia Congressman Harley Staggers introduced an amendment to the Brady Bill that 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 launch the hotline — despite the agency’s assessment less than two years earlier that the project could not be accomplished in the near term. An ensuing congressional study was even more pessimistic, estimating it would take five to ten years.
The implausible Staggers Amendment was defeated, but the idea of an instant check system stuck in a compromise version of the Brady Bill subsequently hammered out by House Majority Leader George Mitchell (D-ME), Senate Minority Leader Bob Dole (R-KS) and others. That compromise legislation reduced the original 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 could be implemented.
The NRA opposed even this modest effort. Meanwhile, HCI’s lone colleague in the gun control movement, the National Coalition to Ban Handguns (later known as the Coalition to Stop Gun Violence), was losing patience with this sausage-making process. “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 lived to fight one more day.
After six years of grueling advocacy by gun control advocates, the Brady Handgun Violence Prevention Act was finally signed into law by President Bill Clinton in November 1993. Under the legislation, the FBI was tasked with setting up the National Instant Criminal Background Check System (NICS) database by November 1998 to screen handgun buyers and long gun buyers (a win for the gun control side). Gun dealers were authorized to proceed with a sale if the FBI did not respond to a NICS query within 72 hours. Congress authorized $200 million to help states computerize their criminal records.
Facing certain defeat, the NRA had pulled off a remarkable 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 actual investigative work to determine the criminal and mental health background of gun buyers. But once NICS was 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 at all that would be completed in about 90 seconds in most cases.
The NRA was still not satisfied and took to the courts to undo the instant check system it had created. In 1994 and 1995, the NRA funded lawsuits in Arizona, Louisiana, Mississippi, Montana, New Mexico, North Carolina, Texas, Vermont and Wyoming seeking to have the Brady Law voided altogether. Radical sheriffs like Richard Mack and Jay Printz were used as plaintiffs. The matter was eventually settled by 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 Handgun Violence Prevention Act, but agreed with the NRA on one important point: The federal government could not mandate that state and local law enforcement officials conduct background investigations on gun buyers because it violated the Tenth Amendment. State and local officials could voluntarily continue to conduct such investigations, however.
Thankfully, most law enforcement officials elected to participate in NICS. But when the database was officially launched in November 1998, it 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. When President Clinton signed the bill into law, James Brady stood by his side and called it “the end of unchecked madness and the commencement of a heartfelt crusade for a safer and saner country.” In truth, the unchecked madness would continue, indefinitely. The new background check law was full of loopholes, projecting a dangerously misleading sense of potency.
The gun control movement’s preoccupation with expanding the NICS system began 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 background checks conducted by federally licensed gun dealers.
Prior to Columbine, few Americans realized that individuals could legally sell firearms in off-the-books, cash-and-carry 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 does “engaged in the business” mean? The Gun Control Act was silent on this question (and things haven’t gotten much clearer since).
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 Senator 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, the military, etc.
I don’t mean to suggest that advocacy for expanded or universal background checks is not without any merit. Our instant check system might be premised on completing sales as quickly as possible, but it has has stopped more than 1.5 million prohibited purchasers from buying guns through federally licensed dealers to date and saved many lives in the process. 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 says the total number of denied, prohibited gun purchasers exceeds 3 million.
Some level of screening on gun buyers is clearly better than no screening at all. But why is the gun control movement so adamant about promoting the failed instant check system when better alternatives are available?
Breaking our dependence on the instant check system and stopping almost all violent individuals from buying guns is possible. Here are two reforms that will get us there.
1) Institute a national gun licensing and registration system. The solution LBJ wanted in the 1960s is the best solution of all. A national licensing process for gun owners would involve a significant waiting period and a thorough background investigation by law enforcement not limited to computer database queries. That means interviews with friends/family/co-workers, requests for letters from physicians, safety training requirements, etc. Background checks wouldn’t occur at the point of sale under this system — a license would have to be obtained in advance of purchasing firearms. An individual’s background would be periodically checked via a licensing renewal requirement to catch new criminal/mental health history.
Registration means gun owners would be 100% responsible for their weapons. They would have to report lost or stolen firearms to law enforcement promptly and would be unable to sell/transfer a registered firearm to another party without verifying the buyer’s background and changing “title” (registration) on the weapon. Gun owners could either register their weapons with the federal government at the point of purchase or share information about their weapons as part of the licensing process.
The Printz v. United States ruling wouldn’t be an impediment because the licensing/registration process would be run by the federal government rather than state and local officials (although the system would certainly benefit from cooperation between the three parties). Nor would the 2008 D.C. v. Heller decision by the Supreme Court, which found an individual right under the Second Amendment to keep a handgun in the home, be a barrier. In that ruling, the five justices in the majority took no issue with the gun licensing and registration system of Washington, D.C., a federal enclave. The Court ordered D.C. to allow plaintiff Dick Heller to license and register his handgun(s)!
Virtually every other democracy has a (longstanding) national gun licensing and registration system. This is the primary reason why other democracies have dramatically lower rates of gun death (and overall homicide) than the United States.
2) Redraw the prohibited categories for gun buyers. Although New Jersey Senator 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 1968 Gun Control Act, there are still too many categories of people at high risk for violent behavior that can legally buy guns today.
This includes violent misdemeanor offenders, abusive dating partners, stalkers, domestic abusers under temporary restraining orders and dangerously mentally ill individuals who have been voluntarily committed. Redrawing the prohibited categories for gun buyers would allow us to use the best research available today, not 1968, to determine who is more likely to be violent in the future based on certain past behaviors.
This wouldn’t necessarily mean just adding new categories to the prohibited purchasers list. It could also involve allowing some people who are currently prohibited because of disability to buy and own firearms again. For example, individuals who are involuntarily committed to psychiatric institutions can improve with regular treatment and regain mental fitness.
The process of redefining America’s categories of prohibited purchasers is already underway in piecemeal form. Senator Amy Klobuchar (D-MN), Rep. Dan Donovan (R-NY), Rep. Debbie Dingell (D-MI), and other Members of Congress have introduced legislation to block certain violent individuals from buying guns. Comprehensively redrawing the prohibited categories for gun buyers, however, would save a lot of lives even if the instant check system remained our entire screening process for gun buyers in perpetuity.
There is nothing inevitable about America’s instant check system for gun buyers, or the prohibited categories drawn up in the 1960s. If we want to have a national licensing and registration system that consistently stops individuals with a history of violence from buying guns in the United States of America, we can (like every other free society). We can stop most of the shooting horrors we are seeing on a daily basis.