- The Washington Times - Monday, February 26, 2018

The federal government’s gun background check system used to be pretty lousy at stopping people with mental health problems from buying guns.

In its first nine years of operation, the National Instant Criminal Background Check System flagged just 3,200 gun purchases, or just a couple dozen a month. But then came the 2007 Virginia Tech shooting, and a push to get states to add more mental health records to the system. The number soared from a few hundred thousand to nearly 4.7 million by the end of 2016.

In the nine years after the law was signed, more than 26,000 gun purchases were stopped on mental health grounds. By 2017, the rate was more than 500 denials a month, accounting for about 6 percent of all refused sales.

As Congress begins another round of debate on gun controls, the post-Virginia Tech law is a rare model of something that has actually moved the needle on firearms access.

“The NICS Improvement Act after Virginia Tech was a good step, and it encouraged states, helped states get records into the system,” said Avery Gardiner, co-president of the Brady Campaign to Prevent Gun Violence.

NICS, a creation of the Brady Bill signed into law in 1993, has become the backbone of federal gun control efforts, intended to police sales.

More than 120,000 sales were stopped in 2016, the last year for which there is complete data available. Of those, about 43 percent were based on a buyer’s past felony or serious misdemeanor record and 18 percent were fugitives. Nearly 10 percent of denials were because of drug addiction, another 10 percent were because of domestic violence convictions or restraining orders, 4.7 percent were because of mental health issues and 2.7 percent were illegal immigrants.

Those under indictment, dishonorably discharged from the military, who’d renounced citizenship or were prohibited because of federal or state listings made up the rest.

But the system is only as good as its records, which is why one of the ideas with the most bipartisan support in Congress right now is to push federal agencies to make sure they’re reporting all of their records.

That plan gained traction after last year’s church shooting in Texas, where authorities say the gunman would have been denied a purchase had his domestic violence record while in the Air Force been reported.

States learned that lesson in Virginia Tech, where the shooter’s mental health history could have denied him the ability to purchase a weapon had the records been part of NICS.

After that tragedy, Congress created a fund to help pay states to upload more records, doling out $109.8 million in grants between 2009 and 2016 to 30 states.

The number of mental health-related records in NICS soared from about 300,000 as of Jan. 1, 2007, to 4.7 million by the end of 2016.

And by that point, state and local authorities had supplied 96 percent of the prohibiting mental health records in the system as the post-Virginia Tech law took hold.

State and local authorities had contributed nearly 4.5 million of the records by the end of 2016, compared to about 159,000 in early 2007 — a 2,715 percent jump over that time period.

“There has been some funding available for states to get these records in, and that’s been good — certainly a big increase over what was previously available,” Ms. Gardiner said.

Federal law bans people from getting a gun if they have been adjudicated as a “mental defective” or involuntarily committed to a mental institution.

The Obama administration tried to expand that to include records of some people receiving Social Security who had been deemed unable to manage their own financial affairs. Congress approved legislation last year undoing that expansion, arguing it cut into people’s constitutional rights without giving them due process.

Still, those on both sides of the aisle say there’s significant room for improvement in NICS.

After the recent mass shooting in Florida, Sens. John Cornyn and Chris Murphy are trying to gather bipartisan support for legislation that builds off the 2007 law by adding penalties for federal agencies that don’t comply with record-sharing rules, in addition to including more incentives for states.

The “Fix NICS” bill has attracted support from some gun-rights groups, who say the system is still in desperate need of better data.

“The NRA has fought for 20 years to put the records of those adjudicated mentally incompetent into the National Instant Check System,” Wayne LaPierre, executive vice president and CEO of the National Rifle Association, said at the recent Conservative Political Action Conference.

But patient privacy has been one major concern that’s given some states pause in participating. Pennsylvania, for example, had resisted submitting commitment records to the federal database for years before relenting in 2013.

In recent years, the federal government has also tried to clarify that federal privacy laws do not prevent states from submitting the records.

Meanwhile, some gun-rights groups say that any expansion of NICS is a step toward more federal control over people’s lives, and that too many people end up incorrectly swept up in the system.

“We believe NICS is unconstitutional and flawed to the core,” said Michael Hammond, legislative counsel for the group Gun Owners of America.

The law does require states that accept grants to notify people they could lose their gun rights if they’re deemed mentally incompetent. States also have to set up a system to allow people a chance to win back their rights.

Some states have passed their own laws requiring that they submit their records to NICS, but many have concluded that the cost-benefit ratio simply isn’t worth it for them.

Ms. Gardiner said Florida, the site of the recent mass shooting at Marjory Stoneman Douglas High School that killed 17 people, has submitted more than 141,000 mental health records to the federal database. But as of Dec. 31, there were fewer than 100 from states like Montana and Wyoming.

“That tells me that there are gaps still in the reporting of mental health records into the NICS system,” she said.

The initial law also authorized more than $1 billion in grant money to encourage additional reporting, and Congress has appropriated far less over the years than what lawmakers could have.

In 2017, there was $11 million set aside for grants specifically tied to the 2007 law, with an estimated $25 million appropriated for the budget year that ends Sept. 30. President Trump has requested $10 million for that specific program in his 2019 budget.

“This has been a big problem, and the number of background checks that they have to do has skyrocketed,” said Adam Winkler, a professor at the UCLA School of Law who has written extensively on Second Amendment issues.

“It’s just part of a whole larger problem of just not financing the institutions in government that are charged with enforcing our gun laws,” he said.


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