Following another egregious shooting, media, politicians, and celebrities are demanding that we again discuss gun control. They allege that conservatives consistently avoid the issue by saying “Now is not the time” as we actively bury the fallen.
If progressives are so insistent on talking, let’s talk, but first they must understand the existing realities of the highly regulated industry and the government incompetence that has failed to prevent tragedy. Then they should review five areas of reform that would thwart criminals while protecting gun owners.
Before getting to the reforms, we must look at the laws already on the books and define some terms. Almost every proposal coming across social media or cable news reveals a grave misunderstanding of the issue. All licensed dealers, importers, or manufacturers conduct background checks—some 273 million since 1998—that stop many prohibited groups from purchasing firearms, including domestic abusers, felons, illegal aliens, and many others.
Automatic weapons are already restricted for civilians or shielded by prohibitive costs and regulations. The majority of guns purchased in America are semi-automatic, meaning one trigger pull fires one bullet. This applies to both handguns and hunting rifles. “Assault rifle” merely describes a gun’s aesthetic and features, not its mechanisms. Suppressors do not silence a gun, nor even meaningfully suppress the sound for bystanders. They merely reduce the volume to protect shooters’ hearing.
The loudest voices usually touch on one of the above topics, either attempting to write overlapping laws or misapplying terms. Energy would be better spent on reforming and improving the systems we already have, including 1) updating the National Instant Criminal Background Check System (NICS); 2) prosecuting prohibited buyers for falsifying information; 3) cross-referencing with other databases; 4) increasing investigation times for flagged background checks; and 5) expanding the user base for NICS.
Unlike proposals from the Left that would not have prevented recent shootings, each of these reforms would actually make a meaningful difference.
1. Clarify Which Records Must Be Submitted to NICS
The FBI maintains the National Instant Criminal Background Check System (NICS). It’s composed of three databases and runs an individual’s information against an extensive list of prohibited persons. Civilian courts and local, state, and federal agencies are required to submit mental health records, violent misdemeanors, felonies, and other convictions to the FBI to maintain the accuracy of the system.
Service members are subject to the Uniform Code of Military Justice, a separate judicial system within the military to adjudicate violations of military rules and regulations in court-martials. The military is also required to report most offender criminal history data to the Criminal Justice Information Services (CJIS) Division of the FBI to be included in NICS checks. Yet Navy requirements do not require fingerprint cards or conviction summaries to be sent to the FBI.
Whether by bureaucratic error, incompetence, or subversion, for at least a decade the military has provided insufficient information to the FBI for the NICS. No more heinous example exists than the Air Force failing to report Texas church shooter Devin Kelley’s records, allowing him to pass three NICS checks.
Legislation has attempted to address this but it failed in Congress. It is essential to clarify which authorities must report and which records must be reported, then to ensure they are reported or available to the FBI. Such legislation and oversight inspections would bolster the database to ensure that already prohibited persons are actually flagged and prevented from passing checks.
Because the three databases may have overlapping records, the FBI noted in December 2016 that “on the state level, unless otherwise instructed by state law or federal funding requirements, participation in the NICS Indices is strictly voluntary.” Some entities that should be providing information are failing to do so, and this should be addressed.
2. Prosecute Buyers for False Application Information
In April 2013, senators Ted Cruz and Chuck Grassley introduced “common-sense measures that [would] increase criminal prosecutions of felons who try to buy guns, criminalize straw purchasing and gun trafficking, and address mental health issues.” Under the Grassley-Cruz bill, a domestic abuser who lied on an application about his criminal record would face swift and harsh prosecution, ultimately leading to incarceration.
While failing a background check denies a legal gun purchase, this legislation would more strongly deterred lying by prioritizing prosecution for prohibited persons attempting to get guns. Violent criminals already willing to lie on official forms or willing to kill are also willing to illegally obtain weapons if they are denied. This bill would have put them in prison before they sought a black market gun to carry out their evil plans.
Unfortunately, Democrats filibustered this bill, so it died with 52 votes. Lying on federal forms is a felony, but the Obama administration was reluctant to prosecute such cases. According to Cruz, “In 2010, 48,000 felons and fugitives lied and illegally tried to purchase guns. They prosecuted only 44 of them.”
Focusing on prosecution is critical, because it would have ensured that Kelley was in federal prison rather than Sutherland Springs. This is the class of people we do not want to have guns, and catching them red-handed attempting to purchase guns but not prosecuting them almost guarantees a tragic outcome.
3. Cross-Reference with DHS
The current background check system runs a subject’s information through the FBI database. While this captures important criminal records, it fails to fully account for immigration status. Illegal aliens are a prohibited class according to federal law, but the NICS does not necessarily check citizenship. The system merely seeks matches in three criminal databases, it does not provide information.
The purpose of ‘common sense’ gun regulation is to prevent unknown entities from having dangerous weapons.
A person who does not appear on the National Crime Information Center (NCIC) database, the Interstate Identification Index (III), or the NICS Indices would pass the background check. When applicable, searches are run through the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE), but the applicability depends on the answers given in the application. If the immigrant fails to list his alien number, no search is run through ICE, and a regular background check proceeds.
No regular cross-reference may fail to identify individuals in the country on temporary visas or who have overstayed their visas. Such oversight could allow a prohibited nonimmigrant visitor or undocumented alien to pass a background check and purchase a firearm. The NICS would catch convicted aliens or those with deportation orders, but may not catch an alias or someone with no rap sheet.
While being an illegal immigrant or foreign visitor does not inherently make one a risk, the purpose of “common sense” gun regulation is to prevent unknown entities from having dangerous weapons, and a more thorough background check to flag questionable or risky noncitizens makes sense. Additionally, focus on prosecutions for prohibited persons falsifying information is essential.
4. Increase NICS Investigation Time
The NICS allows three days for investigation. While approximately 92 percent of background checks are completed in a matter of seconds or minutes for those with no criminal record, if the system finds a match, the transaction is denied or delayed. When a match exists, the FBI has only three days to investigate, after which the seller merely uses his own judgment. Because some databases may be incomplete, expanding the investigation time from three to five days may yield relevant results, potentially saving lives without impacting the rights of gun owners. According to the FBI,
It is critical to note that the NICS Indices is ever-changing. Contributors add, delete, and modify NICS Indices entries with frequency. In addition, certain prohibitive categories contain an expiration date, which could necessitate the related information’s removal from the NICS Indices. Each contributor to the NICS Indices is responsible for the accuracy and validity of its own NICS Indices entries. The NIAA requires federal agencies to update, correct, modify or remove records once they become aware that the information is no longer prohibited under the Gun Control Act no less than quarterly. It is important to note, not all federal agencies possess relevant records under the NIAA. Therefore, some federal agencies may have no submissions to the NICS Indices.
For such a dynamic system, investigations may need to exceed three days to fully vet an applicant. To be clear, this is not a wait time. It is only a delay for the approximately 8 percent of individuals who are not instantly cleared. Of course, not all of these people will be prohibited, but additional time for vetting questionable applications could be useful.
5. Expand NICS for Broader Use
Registered dealers are required to have a Federal Firearms License (FFL). These FFL holders provide a Firearms Transaction Record (ATF Form 4473) to prospective buyers then contact the NICS to facilitate a background check. Every licensed gun dealer follows this procedure, even at gun shows.
To expand background checks, instead of attempting to regulate individual private transactions, the NICS could be broadened to allow private users to run checks. In other words, give non-FFL gun show sellers the option but not the requirement to use the NICS. Presently, only FFLs enrolled with the FBI can initiate a check.
Most gun owners and sellers do not want to arm violent criminals or unstable individuals.
Most gun owners and sellers do not want to arm violent criminals or unstable individuals, and when their personal judgment falls short, having access to the background check system would improve their vetting process. But to require all firearm sales to go through the NICS (forever closing the alleged “gun show loophole”) would require that every gun owner register as an FFL before selling their personal firearm to a friend or family member, which is unrealistic. Allowing private individuals, under certain circumstances, to enroll with the FBI (but not as FFLs) could help facilitate safer gun transfer. This could be accompanied with prohibitions on using the system for discriminatory purposes, but allowing better access to information could enhance the safety of private firearm transactions.
This is not an exhaustive list of reforms, but some for serious consideration. Guns have never been the problem, but rule of law and the integrity of the system almost always is. Whether it is due to innate human depravity or mental derangement, violence exists, and we must safeguard our systems while preserving citizens’ right to defend themselves.
Guns are used defensively to save far more lives than they take. Mainstream estimates range from 100,000 to millions of defensive gun uses every year. If we want to take gun violence seriously in the United States, we must take law seriously. We must respect the laws already on the books and prosecute those who subvert them.
Benjamin Dierker is a law student at the Antonin Scalia Law School at George Mason University. He holds a master’s degree in public administration and a bachelor’s degree in economics, both from Texas A&M University. He is a Christian and a Texan and loves to talk about both.