Eight Years Ago I Wrote the Last Successful Federal Gun Bill, Here’s What I Learned. Here’s what is possible.
When Seung-Hui Cho killed 32 people at Viginia Tech I was counsel for Congressman John Dingell, a pragmatic, yet stalwart, supporter of gun rights. Democrats had recently taken control of the Congress, primarily by taking over districts that were once, and are now again, Republican. Then, as now, the tragedy was met with calls to do something. Yet unlike the numbing repetitive futility that has followed other spree killings, the Democratic Congress passed legislation to strengthen the background check system. It was signed by a Republican president. And believe it or not, it was supported by both the Brady Campaign and the NRA.
During the negotiations that produced the legislation, we had to leave some of the its best features on the cutting room floor. While some of those concessions were made to satisfy the NRA, most were not. In fact, the components that could have prevented multiple tragedies were dropped because of the opposition of groups who gun control advocates would find surprising.
I am under no illusions that passing any legislation would be anything but close to impossible. Our effort was blessed to have three of the best legislators of the last quarter century working on it (Senators Charles Schumer and Tom Coburn, as well Congressman Dingell) as well as an icon of the gun control movement (Congresswoman Carolyn McCarthy). We also had a more rational Republican party and a Democratic party that had to rely on the votes of hunters and rural voters for its majority.
I hope that from my experience something could be found to get us out of our current stalemate, a stalemate that is poisoning both sides of the debate. On the left, it has created an unrealistic utopian ideology that parallels the unrealistic utopian thinking of the religious right. On the right, it is endangering the ability of Republicans to compete seriously in suburban and urban districts. Increasingly, the rhetoric and tenor of the debate is turning off a generation of young people from picking up shooting sports, taking up hunting, ultimately imperiling the an important funding source for much of our nation’s conservation programs.
The National Instant Check System and What Needs to be Done
Retail gun purchases must go through a computer background check- the National Instant Check System (NICS)- before someone can by a firearm. This procedure came into being with the enactment of the Brady Bill in 1993. In 1998, the FBI set the system up and began receiving records from the states. States were supposed to report disqualifying crimes as well as judicial findings of insanity. Unfortunately, that wasn’t done. When Virginia Tech happened, Seung-Hui Cho was able to buy a weapon despite being adjudicated a “mental defective” (a real legal term).
The NICS Improvement Act was designed to change all of that. Prior to its passage states were free to submit to NICS whatever they pleased. Some states submitted thousands of records. Some states submitted, literally, a few dozen. Some reporting entities (like the Veterans’ Administration) were over inclusive. While others, like the state of Texas, essentially ignored it. Definitions were tightened, standards were raised, and a billion dollars was authorized to help states meet them. After months of haggling, a deal was done and it was signed into law by President Bush.
Since then, mass shootings have increased in both their frequency and ferocity. The billion dollars set aside for states has not been spent. What has been parceled out has been inadequate. The current Congress is incapable of performing oversight of the program; and the President, the NRA, and the 2016 candidates have retreated to familiar corners without even an attempt to make the one bipartisan firearm agreement work.
So, what can be done to improve NICS?
- Bring Back the Stick
One of the original features of our bill was a carrot and stick approach to get states to keep and report their files. The carrot was the billion dollars in grants that Congress ended up authorizing. The stick was a provision that would cut Justice Assistance Grants (also known as Byrne Grans) to states and localities who didn’t report their data to NICS. If a state didn’t provide a full compilation of their violent felons, domestic abusers, and dangerously mentally ill to the NICS system they would see reductions in money from the federal government. It was simple. It would have made a difference. It would have promoted uniformity. It was supported by both the NRA and the Brady Campaign.
It was also opposed by almost every local police department and the US Conference of Mayors. Liberal, big city mayors and small-town Republican sheriffs hated the idea of new standards getting in the way of their ability to get grants from the federal government. It was a lesson in federalism. Locals love big government assistance, but they hate big government standards.
Without the stick, the carrot became meaningless. This is why Charleston shooter Dylan Roof was able to buy an arsenal of weapons from a licensed firearms dealer despite having a disqualifying conviction on his record. South Carolina had his file. They just never submitted it to NICS. They didn’t have to, the money spigot would keep flowing regardless.
2. Close the Yellow Loophole
When an initial NICS check is performed three things can happen: a green “all clear” screen ; a red “no sale” screen; or a yellow “no information” screen lights up. If a purchaser ends up with a yellow, the FBI has three days to clear up the information. If they cannot, then the sale goes through.
The FBI’s follow up investigation can only be as good as the information provided by, or maintained, by the states. A quick scan of the NICS grants page shows just how bad the states have been in maintaining and submitting their records. Alaska, amazingly, has yet to submit any records to NICS mainly because they haven’t maintained any.
With such terrible record keeping in some states, it would make sense to deny all yellow purchasers until such time that the NICS system has complete records to work with. At the very least, states that are not meeting their obligations should have their yellow purchasers denied. That alone could create the political pressure necessary to have states like Alaska take their responsibility to public safety seriously.
3. Align NICS with How We Treat the Mentally Ill
Shooting after shooting we hear politicians and commentators on the right argue that the problem is mental illness and not guns. More accurately, it is the access the mentally ill have to guns that is one of the problems. To address this, there needs to be a serious, and at times uncomfortable, conversation about mental illness and who is responsible for the ill.
The short coming of the current Federal rules is that to be disqualified by mental illness a purchaser needs to be “adjudicated mentally defective”. That means a judge needs to be petitioned to declare someone a danger to themselves or others in order for that person to be disqualified from buying a gun. This is what happened with Seung-Hui Cho. It didn’t happen with James Holmes, Jared Loughner, Adam Lanza, or a multitude of others who exhibited signs of dangerous illness but never appeared before a judge.
The law on mental illness and guns is from a time when the mentally ill were institutionalized. It has not kept pace with the reality of today’s treatments and ethics. While it may seem controversial, we need to think seriously about expanding the scope of people who can report names into NICS.
Parents, trained mental health professionals, and school officials should be afforded a fast track procedure to submit names to their states (or directly to the FBI) of people who should not be allowed to purchase firearms. Obviously, this would present some questions about verification as well as removing names, but it is an altogether more realistic method of inclusion than the current system.
In the months before he shot over 80 people in a movie theater, James Holmes displayed increasingly erratic and delusional behavior. Holmes’ psychiatrist believed he displayed possibly dangerous tendencies. Counselors at the University of Colorado, as well as his father, felt the same. Yet because he never appeared before a judge he was able to purchase multiple weapons and thousands of rounds of ammunition in the days before the attack.
The idea of allowing mental health professionals the ability to report into NICS was raised during the negotiations over the bill. The NRA, while not entirely comfortable with the idea did not oppose it. Instead, the opposition to this came from the psychiatric lobby who felt it would create an unnecessary stigma as well as keep gun enthusiasts from seeking treatment out of fear of losing their gun rights.
While I am sympathetic to those concerns, I think we can draw clear lines to protect the public and patients. I don’t want to see someone with mild depression, or in marriage counseling, needlessly kept from hunting because of an overzealous counselor. Nor do I want people shying away from treatment because they think the government will have their name on a list. But this concern must be balanced with the reality of today’s mental health system.
We know so much more than we once did about the biochemical nature of these diseases. We know the miracles medicine and therapy can do for people; and we also know the trauma their absence can cause. For those periods of trauma we don’t need a judge’s order, but we do need the wisdom and judgment a parent or professional can provide to help keep the public safe.
Will this be a difficult debate to have? Absolutely, but we cannot continue to dance around the fact that many of the worst incidents have been perpetrated by people who share a common profile and whose violent and delusional tendencies were apparent long before they made headlines.
A clear reporting standard coupled with an effective program to allow those in the system to be removed could be negotiated to the satisfaction of law enforcement, the NRA, and the mental health community. It might not prevent every incident, but it would certainly make a difference.
After each mass shooting the same stale debate plays out with the same well worn tropes and soundbite solutions. The politics is increasingly intractable and self-serving. The same side that opposed mental health parity for insurance and Medicaid view the solution as some yet-to-be-articulated health care solution. While progressives, who rightly mock the ridiculousness of deporting 11 million illegal immigrants, think its reasonable that we can ban and seize tens of millions of private firearms.
One side proposes banning certain guns (so-called assault weapons) based largely on ascetics. The other asserts, contrary to all evidence, that more guns in the hands of law abiding citizens increases safety. One side does not understand the value millions of Americans place in their firearms, and never will. While the other, cannot understand why their responsibly owned and maintained firearm is viewed as an existential threat to a distant stranger’s safety.
We can do something. We can find common ground on making a shared endeavor (the NICS System) work properly. The three ideas I laid out here can, maybe, begin to bridge some of the debate.
Will this do everything? No. Will it do something to stem gun violence? Honestly, I don’t know. Probably some (especially suicides). Even if it works we’ll never know the shootings it prevented. It won’t stem much of the carnage cities like Chicago have seen this year. It won’t end the debates on clip capacity, concealed carry, or “assault weapons”. Those issues will endure for partisans to raise money and rile up email lists.
But if there is a place to start to make things just a bit safer this is it.
