Weighing in on Obama’s Background Checks Executive Order and the NRA response

POLICE OFFICER-SIDEARMLet’s get this out of the way first: I’m a gun owner. I own multiple weapons and am a strong supporter/defender of 2nd amendment rights.

Now that I’ve shown my bias, I have to say I agree with Obama’s move. (Actually, I’m a little dubious about executive orders that involve executive branch enforcement, but inaction by congress and states has left little choice for the outgoing president.)

Here are the broad strokes of Obama’s order:

  1. More gun sellers—particularly those who do business on the Internet and at gun shows—will be required to obtain gun seller licenses and thus be required to do background checks on buyers.
  2. Firearms lost in transit between a manufacturer and a seller must be reported to federal authorities.
  3. More than 230 additional record examiners and staff would be added to help the FBI process the background checks 24 hours a day.

The National Rifle Association (NRA) jumped right in to criticize the move. Wayne LaPierre, Executive Vice President and CEO of the NRA had a well thought out and executed statement posted shortly after the announcement. Sadly, his points (all valid) have no bearing on the issue at hand.

At the heart of LaPierre’s argument is that “more background checks” won’t do any good because the National Instant Criminal Background Check System (NICS) is incomplete, lacking full participation by states in both felony records and mental health records. This is true. States have lagged horribly in complying with database participation. But the argument has nothing to do with the issue at hand; guns changing hands, often at high volumes, with no insight into buyer qualifications.

If a felon, or someone who is “adjudicated mentally incompetent” goes into a gun store and fails a background check, (or more likely, knows they would fail so don’t attempt it), all they have to do is stroll down the the flea market, pay to go into a gun show, or log onto one of the many message boards available to buy private guns to bypass the system.

In his video, LaPierre says “If you cast a net and the fish swim through the holes, you don’t need a bigger net. You need tighter holes”. Though a word smith worthy metaphor, a more apt analogy would be a wall that is only half built but also has holes in it. In all cases, regardless of the incomplete nature of the NICS database, if a felon or mentally unstable person wants a gun, all they have to do is avoid licensed dealers to ensure they don’t face a background check at all.

But lets talk for a second about LaPierre’s premise of “one of the greatest failures in the history of American leadership”, regarding the lack of a concise NICS database. This is an issue belonging to the states. Virginia (my home state) is very pro gun, but does a decent job of keeping its felon lists up-to-date. But the mental health database was sadly lacking until the Virginia Tech shooter, Seung-Hui Cho killed 32 people and wounded 17 more on April 16th, 2007.

Virginia had long protected its status as a gun friendly state and worded its mental health statutes slightly different than the federal mandates. In Virginia, a mental health ruling only precludes a gun purchase if someone  was “involuntarily committed” or ruled mentally “incapacitated”. Virginia Special Justice Paul Barnett certified in an order that Cho “presented an imminent danger to himself as a result of mental illness,” but instead recommended treatment for Cho as an outpatient. Because he wasn’t involuntarily committed, he remained eligible to purchase guns. This hole in the Virginia Law runs afoul of Federal Law and Virginia responded by tightening its interpretation of the term “mentally incapacitated” after the 32 deaths.

Most other states do not submit mental health records. In a report by the US Government Accountability Office (GAO), some states cited bureaucratic barriers, others technical ones, like switching from paper-based to computer systems. And some states contend it violates their laws to forward mental health records to the federal database. A few states are changing their laws.

So while LaPierre is correct that there are significant holes in the data, his argument in no way addresses the massive end run felons and the mentally unstable can take in obtaining weapons elsewhere, sold legally by the seller and only a criminal act for the felon buying the gun.

LaPierre also mentions convictions of violators in his rebuttal; “In 2010, roughly 80,000 prohibited people committed a felony by trying to buy a gun. Just 44 were prosecuted for it. Does that sound like a good number to anybody?”

Those numbers, though actual numbers, are taken out of context and misidentified. the “roughly 80000 prohibited people” aren’t actually prohibited people. They were 76142 denials, not necessarily prohibited people as is explained in the GAO report.

NICS referals to ATF 2010

source: Regional Justice Information Service report on Enforcement of the Brady Act, 2010

The remaining denials (71,410, or nearly 94 %) did not meet referral guidelines or were overturned or canceled. Overturns occurred after review by the DENI Branch or after the FBI received additional information


cases declined by ATF

source: Regional Justice Information Service report on Enforcement of the Brady Act, 2010

source: Regional Justice Information Service report on Enforcement of the Brady Act, 2010 2 Enforcement of the Brady Act, 2010

source: Regional Justice Information Service report on Enforcement of the Brady Act, 2010

Only 4732 denials were eligible for referral to ATF field offices for action. Once there, appropriate actions are considered and acted on based on each case. Though few are actually prosecuted, each case is disposed of according to federal and state guidelines when possible. In the vast majority of cases (1923), if a weapon was actually procured in violation, it was seized, transferred, or classified “not prohibited”. Indictment is difficult as intent must be proven to convict and with the over crowded legal system, many States Attorneys’ won’t pursue cases when it’s unlikely to result in conviction. A conviction is a difficult thing to obtain in gun friendly states.

What we have are two different issues:

  1. State compliance in submitting felony and mental health adjudications to NICS (as rightly detailed by Mr. LaPierre).
  2. Incomplete NICS database application due to point of sale loop holes in reporting for gun shows, flea markets, and non licensed gun sellers (as rightly detailed by President Obama).

The reason I bring up this disparity, (other than the fact that I hate to see a red herring being used in such an important debate), is that the NRA (and its supporters) are in no small way responsible for the lagging in state reporting to the NICS. The very system LaPierre proclaims was the brain child of the NRA is in fact lacking due to a state level political deficit in demanding it be populated in a timely and complete fashion.

If the NRA is so very disgusted by the numerous holes in the NICS database, it only makes sense they would be taking the lead in pushing the states to correct the deficiency. This has not been the case.

The NRA claims they want only law abiding citizens to be in possession of firearms. I have no doubt this is true, but there is a narrow political rail to walk to ensure that happens under current law and those states that lean toward giving gun owners the benefit of the doubt don’t move very quickly (or completely) when identifying those who are deemed mentally ill…perhaps because they fear that classification is doled out too freely. It doesn’t seem very conservative to me, allowing those deemed mentally ill to continue purchasing weapons because some might not be dangerous. Do they feel the same way about felons? No.

It is irresponsible to break a system (actively or passively) due to a distrust of mental health assessments. As Virginia learned a little too late, your personal feelings on a subject are not a thoughtful solution to a real problem. And whistling past the graveyard will not stop these ghosts from getting the guns they want.

If you liked this post, then please like this post 🙂  S.L. Shelton is the author of an Amazon Bestselling Political Thriller Action Espionage Series, (The Scott Wolfe Series). Follow him here on WordPress, on Twitter @SLSheltonAuthor or Facebook. He will love you for it. And if you like the posts, click like (likes, follows and reviews are the best way to get authors to write more.)


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