Although the gun debate has been put off in the Senate temporarily, it hasn’t gone away, and it isn’t likely to.
If this were like most post-shooting gun debates, Republicans would be standing fast in defense of the Second Amendment, and Democrats would be letting the most hysterical elements of the gun control movement do all their policymaking for them. And of course, the result of all this would be that nothing happens.
But there are already hopeful signs that the debate might get somewhere this time. They begin with the broad acknowledgement that even if anti-gun activists have been pursuing the wrong ends ever since Sandy Hook, there are finally some measures available that everyone agrees with that can help reduce the risk of mass shootings.
The most trendy gun control proposal after other recent shootings has been to make background checks universal. It may be a prudent idea, and it may someday be politically feasible. We have endorsed a voluntary background check system for private sales that respects lawful gun owners’ privacy. But neither our idea nor the more common ones involving expanded use of the existing National Instant Criminal Background Check system can do much good at the moment.
There are three specific reasons for this. The first is that even if universal background checks are desirable in theory, they are unrelated to the mass shooting problem we have experienced. There is no recent case we are aware of in which the specific kind of lawful but unchecked sale — i.e., an intrastate private sale conducted without a background check in one of the 31 states where that is legal — led to a mass shooting. No gun sold in that manner appeared in Parkland, nor at Sandy Hook, nor in Las Vegas, nor at Fort Hood, nor at the Pulse nightclub, nor in San Bernardino, nor in any other recent mass shooting.
That’s not to say such unchecked sales couldn’t lead to tragedy at some point. But for the moment, this is not a solution looking for a problem that doesn’t exist. What’s more, gun control advocates explicitly talk about the longstanding ideological goal of turning the records that result from universal checks into a national or state registry that keeps records on gun owners. That reveals there is an ulterior motive for this proposal, and it pretty much guarantees there won’t be any cooperation on it.
The second flaw in merely pursuing expanded background checks is a more important and less political one: The NICS background check system is just a mess. Thanks to laziness, a severe lack of funding, and conflicting legal definitions in some states, a disturbingly large number of state governments (and even branches of the U.S. military) haven’t been entering required information about convictions and commitments into the database that would identify felons and the mentally ill so that they could be barred from buying guns. According to one study, as many as 25 percent of all felony convictions are missing from the database. This problem has reared its head in many recent high-profile shootings, including most recently the November 2017 church shooting in Sutherland Springs, Texas.
Both Congress and the states can take bipartisan steps to fix this. The Senate can start by passing the Fix NICS Act, a version of which has already passed the House. The bill would raise state reporting standards and provide $125 million to help do so. State legislatures also have no excuse not to create or tighten their own laws on NICS compliance. Virginia did this after the tragic experience of the 2007 Virginia Tech shooting, in which the perpetrator passed a background check despite having been adjudicated as mentally ill.
The reason expanded background checks won’t fix the problem is that the instant check system lacks teeth. For years, there have been no consequences for people who lie on their instant check applications in an attempt to buy guns illegally. Between 2008 and 2015, more than 550,000 people trying to purchase guns were caught lying about convictions and mental illness, yet only 254 of these rejected buyers were prosecuted, according to the Justice Department’s inspector general.
If the laws on illegal purchases were strictly enforced, there would be far fewer attempts to make them. To that end, Sens. Pat Toomey, R-Pa., Chris Coons, D-Del., Marco Rubio, R-Fla., and Bill Nelson, D-Fla., have advanced a bipartisan proposal that would require notification of state authorities within 24 hours any time an illegal purchase is attempted. Because attempted illegal purchase of a firearm is also a state offense in 49 states, this notification would help state prosecutors to throw the book at illegal purchasers. The swift and certain prosecution of such cases, in which the federal Justice Department could also participate, could even make up for what deficiencies remain in NICS data reporting.
The goal in the debate over gun rights shouldn’t be to hassle or track law-abiding gun owners, or to resist all change, but rather to prevent the next massacre. If Congress follows an evidence-based approach, it will pass the two measures mentioned above with broad bipartisan majorities.
