by Joseph P. Tartaro | Executive Editor
The echo of the multiple shots fired by Devin Patrick Kelley into the congregants of the First Baptist Church in Sutherland Springs, TX, on Nov. 5 had barely faded before the anti-gun crowd was calling for further expansion of the National Instant Background Check System. Some control advocates want the charter for NICS expanded to include all firearms transfers between private citizens, including between relatives and temporary loans between hunting companions. Others recommend the addition of people whose names appear on government “no fly” lists. And still others want to abolish the three-day window for delays in approvals.
But they are all missing the point —and the facts.
In this latest example of the failure of the NICS system to prevent the sale of firearms to a convicted domestic abuser and dishonorably discharged Air Force veteran, the fault lies in the fact that the disqualifying records were never entered into the NICS database when they should have been.
And that’s not the first time such missteps have been linked to the NICS system. There were similar failures in the case of the Charleston, SC, church shooting, in the Virginia Tech shooting, and numerous other instances of mass murder.
In the most recent failure, the Air Force admitted a day after the Sutherland Springs shooting that it had failed to enter the man’s domestic violence court-martial into the federal database that might have blocked him from buying the rifle he used to kill 26 people.
Under federal law, the conviction of the gunman, Devin P. Kelley, for domestic assault on his wife and toddler stepson — he had cracked the child’s skull — should have stopped him from legally purchasing any guns. If the information was in the federal database!
Once again, it was not the FBI’s background check system that failed, but the source for its relevant information.
Now the Air Force has said it is looking into the circumstances surrounding Kelley’s case, and other possible convictions that have been improperly or inadequately unreported to the federal database.
But the Air Force is not alone in its failure to send relevant disqualifying data to NICS. Many states are also remiss in failing to provide such information, particularly for mental health patients.
According to the National Shooting Sports Foundation (NSSF), background checks have been conducted since Nov. 30, 1998 with tens of millions of transactions screened through March 31, 2017; during which time more than 27 million were conducted in 2016 alone.
However, a background check is only as good as the records in the database. That is why the firearms industry, spearheaded by NSSF, its trade association, has been supporting improvement in the current NICS system since it launched its FIX NICS campaign in 2013 rather than just willy-nilly adding lists of names without due process of law, as was done during the Obama administration. That’s when countless retirees in the Social Security system, who have a third party conservator handling their financial affairs, were added to the NICS database without due process. And when the names of all military veterans with similar financial assistance were also added earlier by the Veterans Administration.
Fortunately, thanks to the current Congress and President Trump, those two missteps have been corrected. But those two instances should provide guidance on what not to do with NICS.
NSSF says that by increasing the number of prohibiting records the states submit to the FBI databases would help make NICS more useful in preventing illegal transfers of firearms to people who are prohibited by law from acquiring or owning them.
Under the FIX NICS campaign states must improve the NICS database by submitting any and all records establishing an individual is a prohibited person, such as mental health records showing someone is an “adjudicated mental defective” or involuntarily committed to a mental institution, as well as official government records showing someone is the subject of a domestic violence protective order, a drug addict or subject to another prohibited category.
The firearms industry has a long record of supporting background checks. NSSF supported background checks prior to the passage in 1993 of the Brady Act that created the point of retailer sale background check system followed by the launching of the NICS system in 1998.
The existing background check system must be fixed, however, before Congress even considers whether to expand background checks, otherwise we’ll just have more incomplete and inaccurate checks and more failures to prevent future incidents of violence involving prohibited people, especially those with a history of violence or serious mental illnesses.
The failure of the federal NICS system to prevent the First Baptist Church shooting due to reporting errors is not a singular event. After the tragedy that unfolded earlier in Charleston, anti-gun advocates were once again called for new gun control laws, using this attack to justify their pre-existing agenda, but the facts show that again an unfortunate failure allowed Dylan Roof to purchase the handgun he used.
NICS was also waiting when Roof first attempted to purchase a gun. When the retailer contacted NICS, the initial check surfaced a record of a recent drug arrest, so the purchase was delayed and turned over to an FBI examiner. But due to a quirk of South Carolina geography, the examiner contacted the wrong local police department. The bottom line is that the examiner ultimately failed to obtain the police report where Roof had apparently admitted to being an illegal user of a controlled substance – grounds to issue a denial.
Under federal law, the FBI has three business days to determine whether there is sufficient evidence to deny a purchase. Because the examiner was unable to find the correct information, Roof was able to purchase the gun. But it wasn’t until two months after the gun purchase that Roof used the gun to commit the crime. No one knows why the sale was not recalled.
Unfortunately, there is also long history of federal failures to prosecute those disqualified would-be gun buyers who are rejected. If the system worked as it should, those rejected should be prosecuted for violating the law if they knew that they fell into a category of people who are prohibited from buying or even possessing firearms.
So, before anyone piles on with more background checks, let’s FIX NICS FIRST.
