States should do more to participate in FBI database for firearm checks

The tragic events in Sutherland Springs, Texas, were preventable. We had the laws. We had the tools. We had the means.

Except they weren’t being used.

In the days following the horrific attacks on churchgoers, we’ve learned that the murderer who carried out these heinous crimes was known to authorities as an individual who should have never owned a firearm. Except, those authorities failed to submit the records to the FBI that would have prevented him from buying guns.

{mosads}The criminal was court-martialed by the U.S. Air Force and convicted of a felony involving domestic violence, had been involuntarily committed to a mental health institution and plotted to commit crimes involving firearms against military superiors. For his crimes, he was sentenced to 12 months in a military prison and given a punitive bad conduct discharge. He was therefore prohibited under federal law from purchasing a firearm. The FBI’s National Instant Criminal Background Check System (NICS) was established to block the sale of firearms to prohibited persons.

Except, in this case the FBI was never told. As a result, he was able to purchase the murder weapon from a licensed firearms retailer after passing the mandatory NICS background check. 

The National Shooting Sports Foundation supported the establishment of a background check long before the 1993 passage of the Brady Act that created a retail point-of-purchase background check system (NICS) which came online in 1998. However, under the 10th Amendment the federal government cannot compel individual states to submit records of prohibited persons. It is the responsibility of the states to voluntarily submit these records to ensure the NICS background check system is accurate and effective. Federally licensed retailers rely upon the accuracy of the NICS system to prevent sales of firearms to prohibited persons.

NSSF launched the FixNICS campaign in 2013 to gain full participation from all states to enter disqualifying records into the FBI’s NICS database. At the end of 2012, disqualifying records totaled 1.7 million and 19 states had made fewer than 100 records available with 12 having submitted fewer than 10 records. NSSF got to work with the states to ensure all disqualifying records were submitted to the FBI, including criminal and adjudicated mental health records. 

Since then, 16 states have changed their laws to enter disqualifying records into the FBI’s NICS database. By the end of 2016, the number of disqualifying adjudicated mental health records in the database has increased over 170 percent to nearly 4.5 million records. But there is still work to do. New Hampshire has submitted just 51 records, Montana only 13 and Wyoming just four.

Now, we are tragically learning that for more than two decades the Department of Defense has not been submitting records. Secretary of Defense James Mattis called on the Defense Department’s Inspector General to conduct an investigation. But this has been investigated by the Pentagon twice before, in 2014 and 1997. Both times, the investigation found that as many as 94 percent of records that would disqualify firearms ownership were not submitted to the FBI. Equally troubling is the fact that the FBI appears to have been aware that the Department of Defense was not fully submitting disqualifying records to NICS. New laws are not needed to fix this problem. The administration should immediately direct the Department of Defense, and all federal agencies, to report all records necessary to establish that a person is prohibited under current federal law from purchasing a firearm.

NSSF is working with Congress to identify measures to incentivize states to fully participate in submitting all disqualifying records to the FBI. Just as states that failed to lower the threshold for drunk driving risked losing federal highway funds, states that fail to reform their laws to facilitate the submission of disqualifying records to NICS should be ineligible for Department of Justice grant funds. Congress should also fully fund the NICS Improvement Act of 2007 to assist the states to have the necessary resources to promptly and efficiently provide records to NICS.

It is past time for the Defense Department to comply with their own instructions to do the same. The firearms industry, just as others, wants to keep firearms away from those who shouldn’t possess them. We have the tools. It is time to make them work.

No more excuses. It’s time to FixNICS.

Lawrence Keane is the senior vice president and general counsel of the nonprofit National Shooting Sports Foundation.