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How to Fix Background Checks

Donald Trump says he wants to improve the law. Here’s what he would do if he meant it.

After last week’s horrific mass shooting in Parkland, Florida, there was immediate attention given to the apparent warning signs about the alleged shooter. Even gun rights advocates, like President Donald Trump, seemed to imply that Nikolas Cruz never should have had access to a gun. All of which raises important questions: We have background checks for gun sales, don’t we? Why, then, are violent people able to so easily get guns?

Because of the federal background check system enacted as part of the Brady Law, more than 2.4 million legally prohibited gun-buyers have been blocked from buying guns from gun stores or denied gun permits. We are surely safer because criminals can no longer buy guns over the counter by lying on a federal form. However, the mass shootings that have become emblematic of American gun violence continually instruct us that the system is still inadequate to the task and must be strengthened.


The flaw that has received the most attention is that federal background checks are required only for sales by licensed gun dealers, allowing transactions between private persons to occur with no check at all. In multiple other ways, though, the federal system reflects a core premise that, unless abandoned, will always limit its effectiveness: The background check law prioritizes easy access to guns by law-abiding gun owners over efforts to ensure that violent people do not get guns.

First, the categories of persons prohibited by federal law from buying guns are entirely too narrow. A particularly consequential example is that federal law bars the sale of guns to persons who have committed misdemeanors involving domestic violence—but permits sales to those who have committed other violent misdemeanors. Research shows that violent misdemeanors are predictors of future, more serious violence. If our priority is to stop violent people from getting guns, any violent misdemeanor should be disqualifying.

Second, the background check system puts a premium on speed, not thoroughness. It is, after all, known as the National Instant Criminal Background Check System (NICS), with most of the checks completed within minutes and 95 percent of them completed in less than two hours. Indeed, it is not a “background check” system at all; it is a “database check” system. The gun dealer contacts the FBI or a state equivalent, and a computerized check of various databases is performed to determine if the buyer is the subject of a disqualifying record. No matter how many red flags there may be in the buyer’s past, if no disqualifying record is in the system, the purchase goes forward.

We now know that the man who shot and killed 26 parishioners in a church in the tiny Texas town of Sutherland Springs was himself a prohibited buyer due to his conviction in the military justice system for domestic violence. But because the Air Force did not report the conviction to the NICS, another person with a violent past was able to buy a gun and commit a mass atrocity. A decade ago, the Virginia Tech mass killer had been able to buy his gun over-the-counter even though he had been adjudicated dangerously mentally ill by a Virginia court. The record of the adjudication was never transmitted to the NICS. Even today, there still are huge gaps, particularly with respect to state records of individuals suffering from disqualifying mental health problems and domestic violence convictions.

A third problem, closely related to the premium on speed, is that the system allows law enforcement authorities no discretion. That is, there is no leeway to expand the background check to encompass more than just a database check and no authority to exercise informed judgment about who cannot be trusted with a gun. Much has been written about the apparent warning signs that Nikolas Cruz, who has reportedly confessed to the Florida school shooting, was both disturbed and violent. It has been reported that the police department in Broward County, Florida, had received about 20 calls for service relating to Cruz in recent years. He had been suspended from school for fighting and other offenses. At one point, his high school reportedly alerted a mobile crisis unit to get him emergency counseling. He had inflicted cuts on his own arms. His mother had noticed a Nazi symbol and a racial slur on his book bag. He reportedly was violent toward random animals. Eventually, he was expelled from the school for disciplinary reasons.


But even the collective significance of all of these warning signs provided no legal basis, under federal or Florida law, to deny him the purchase of the AR-15 assault rifle he used in the shooting because they did not give rise to a disqualifying record under federal or state law. What if, before Cruz sought to purchase a gun, he had to have a permit that required a real background check unconstrained by the need for speed, involving, for example, interviews with Cruz’s mother, local police, and school officials? The authorities could have uncovered more than a sufficient basis to exercise an informed judgment that this 19-year-old should not be permitted to buy a gun.

Such a real background check system could provide ample protection against the arbitrary denial of a permit by the authorities. A permit denial could be based only on a demonstrable reason to believe that the individual, if armed, would pose a danger to the community (or to himself). The government could be required to articulate the reasons for the denial and the supporting evidence, and the denial could be subject to judicial review. Our most populous states already give the authorities broad discretion to deny concealed weapon permits, limited by legal standards set forth in statutes and enforceable through judicial review. A similar system could be extended to the purchase of guns. The Supreme Court has held that the Second Amendment guarantees “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Nothing in that formulation precludes an effective system to determine whether a prospective gun owner is, in fact, “law- abiding and responsible.”

Is it realistic to believe that Congress could act to bring all guns, or at least handguns and semi-automatic assault weapons like the AR-15, within a system of real background checks? The politics around guns will need to fundamentally change for that to happen, but the signs from student activists in the wake of last week’s high school massacre are at least pointing to a renewed sense that this is a fight worth having. For the foreseeable future, however, it makes sense to pursue incremental improvements: Congress should extend NICS to all gun sales; expand certain of the “prohibited person” categories; and get serious about getting disqualifying records into the system. Trump is reportedly in favor of considering improvements to the background check system. If he’s serious, he will start with the aforementioned low hanging fruit. It may not seem like a lot, but each small change will save lives. At this point, that should be every American’s priority.

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