Op-Ed: Improving Firearm Background Checks

President and founder of Safe School Technologies presents a series on gun laws and what citizens can do.

Editor's Note: The following article was submitted by Robert V. Tessaro, who recently moved back to New Jersey after spending five years in Washington, D.C., where he worked for the Brady Center to Prevent Gun Violence.

Background checks are one of the most effective ways to prevent potentially dangerous people from having access to firearms, but the current system has gaping flaws that need to be addressed. There are ways to strengthen background checks that will not impede any lawful citizen from having access to firearms that should be implemented as soon as possible.

Who can own a gun?

Current Federal laws prohibit the following people from owning a firearm:

  • Felons
  • Fugitives from justice
  • People addicted to/unlawfully using controlled substances
  • Court-ordered dangerously mentally ill people
  • People in the country illegally
  • Dishonorably discharged soldiers
  • People who have renounced United States citizenship
  • Domestic violence abusers subject to a protective order
  • Domestic violence abusers convicted of a misdemeanor crime of domestic violence

In addition, 

  • Persons under age 21 cannot buy a handgun from a federal firearms licensed dealer (FFL) (but, persons aged 18-21 can possess a handgun)
  • Persons under age 18 cannot buy a long gun (i.e. shotgun or rifle) from an FFL
  • A person under indictment for a felony cannot receive a gun from another state

There are some glaring shortcomings in the law. In the state of New Jersey, for example, you are not prohibited from owning a gun if you are legally blind.

A more severe hole in the current law is commonly referred to as the “Terror Gap”. If you are on the U.S. Government Terrorist Watch List for being a known or suspected terrorist, and do not meet any of the other prohibitive categories, you can purchase a firearm. You cannot get on an airplane, but you can buy an AR-15 assault rifle or a .50 caliber sniper rifle and thousands of rounds of ammunition. According to a 2011 U.S. Government Accountability Office report, individuals on the Terrorist Watch List have attempted to purchase firearms from an FFL 1,228 times since 2010. More than 90 percent of those sales were allowed to proceed because there were no other disqualifiers.

Security professionals are concerned about the Terror Gap as it relates to “soft targets” such as schools, churches and shopping malls. Blueprints of elementary schools in New Jersey, Virginia and Texas have been found on computers recovered during U.S. military operations in Iraq, and there has been intercepted chatter about terrorists discussing the lax gun laws in the United States. In 2007, the Bush Administration endorsed legislation to close the Terror Gap, but it was defeated after strong opposition by the National Rifle Association (NRA). New Jersey Senator Frank Lautenberg has introduced legislation in the Senate to close the Terror Gap, but it has not gained enough support to advance to a vote yet.  Sen. Lautenberg has correctly noted, “This is a homeland security issue, not a gun issue, and there's no reason we shouldn't be able to stop a terrorist from buying a dangerous weapon in the United States.”

Brady Background Checks

Signed into law in 1993 by President Bill Clinton and supported by President Ronald Reagan, the Brady Law, named for former White House Press Secretary James Brady who was shot and gravely wounded during an assassination attempt on President Reagan, requires all FFLs to conduct a background check on gun purchasers. The law mandated the creation of the National Instant Criminal Background Check System (NICS), a database of prohibited purchasers maintained by the Federal Bureau of Investigations. Since its launch 1999, the NICS system has blocked 1.6 million prohibited purchasers.  The original law also required a five-day waiting period for the purchase of handguns. The NRA strongly opposed the law, saying that President Clinton, “had blood on his hands” because of background checks. They filed a series of lawsuits, which resulted in the waiting period requirement to be removed, and successfully removed the requirement that states report any records of prohibitive purchasers to the NICS system.

As a result, 23 states and the District of Columbia have reported fewer than 100 records of individuals who should be prohibited because of mental illness. Forty-four states have reported ten or less controlled substance abuse records, and 33 states have not reported any controlled substance records at all.  New Jersey keeps a database of prohibited purchasers, which is used by local police before issuing a handgun permit, but sends very few of the records to the FBI. A person who is prevented from buying a gun in New Jersey because they have been determined to be dangerously mentally ill, could move to another state, and when the background check is run, would not show a reason to prevent the sale. There are financial incentives for states to report to the NICS system, but still many choose not to submit most of their records. Seung-Hui Cho, the shooter at Virginia Tech, would have been prevented from buying a gun at an FFL if the state of Virginia had reported his records to NICS.

It is estimated that millions of individuals who should be prohibited from purchasing a firearm under existing Federal laws are not in the background check system and are not being stopped from buying firearms.

Sometimes, a mistake can happen and a prohibited purchaser may be allowed to complete a firearm purchase. The NICS system originally retained records of individuals who purchased weapons for 90 days to allow for the system to be audited. The purpose was to catch any sales that should have not gone through and alert the local authorities.  At the behest of the NRA, records are now destroyed within 24 hours, allowing virtually no chance to audit the system. There is no federal database of firearm transactions.

Gun Show Loophole/40 Percent of Gun Sales No Checks Conducted

There are other loopholes to the Brady Law. Private sales of firearms are not subject to a background check in most states. Collectors of firearms can rent a table at a gun show, similar to a flea market, and sell their guns for cash, with no record kept of the sale, and no background check conducted. Unlicensed sellers are also permitted to sell firearms online in many states. You can respond to an ad on Craigslist, meet a stranger in a parking lot, and pay cash for a stockpile of weapons. No background checks, no questions asked.  It is estimated by the National Institute of Justice that as many as 40 percent of guns are sold through private sales, including gun shows, without a background check. Only 6 states require universal background checks for all guns sales. New Jersey requires you to have a special permit to purchase a handgun issued by your local police department, and a Firearms Purchaser Identification Card for a long gun such as a shotgun or most hunting rifles. All firearm purchases in New Jersey are also subject to the NICS background check at the point of purchase. Assault weapons like the one used in Newtown are banned in New Jersey.

In a bizarre interview last week on NBC’s show “Meet The Press”, NRA CEO Wayne LaPierre stated that they supported the NICS system even though they have a record of doing otherwise, that the United States needed to create a national registry of all mentally ill individuals to keep guns out of the hands of the “nut jobs”, rejected the idea of a gun transaction database, and said there was no need to close the gun show loophole. He argued that there is no loophole; that private sales are mostly from one friendly hunter to another acquaintance. Anyone who has ever been to a gun show knows otherwise. There are dozens of undercover videos that demonstrate how gun shows are open markets where the seller rarely knows the buyer, and unless required by law, rarely runs a background check or refuses a sale for cash. My friend Colin Goddard, who was shot four times during the Virginia Tech massacre, made a documentary titled “Living for 32”(http://livingfor32.com/) documenting this loophole. He traveled to gun shows around the country to see how easy it was to purchase a firearm, often being allowed to purchase powerful assault rifles without having to show his ID. It is an outstanding educational tool if you would like to learn more about this topic.

In the wake of the Virginia Tech shooting a bill was presented in Congress to close the gun show loophole. As a result of a strong campaign against it by the NRA, it was never allowed out of committee or to be voted on.

It should not make sense to any rational person that we should improve the registry of prohibited purchasers, and not require all firearms purchasers to be checked. LaPierre showed how out-of-step the NRA leadership is with its members.  According to a recent poll, 74 percent of NRA members and 92 percent of all Americans support mandatory background checks of anyone purchasing a gun.  Closing the gun show loophole would not prevent one single law-abiding citizen from owning a firearm. So why are we not closing it? The NRA argues gun control will not stop criminals from getting guns, but why not try to make it more difficult for them?

Common sense needs to prevail in the debate over firearms. It is estimated that 70-80 percent of all guns recovered at crime scenes in New Jersey come from out of state. Loose gun laws and loopholes in states south of us are impacting our quality of life. Demand politicians close the loopholes in our background check system.

Rob January 10, 2013 at 05:24 PM
Alib, I do not want ANY guy who is not a sworn law enforcement officer that I do not know going to my kids school with a gun. Gun free school zones in crease the legal penalty for having an illegal gun near a school, why would you be against that? NJ has the 4th lowest firearm death rate in the country, and the lowest overall suicide rate in the country. We also have plenty of hunters who can still get rifles and shotguns. Our laws work.
Rob January 10, 2013 at 05:26 PM
Joe, you are right on with this. The 20,000 number has been pulled out of thin air.
raymond Weis January 10, 2013 at 07:22 PM
I am not against background checks at all but I believe a lot of the problems we have go back many years ago when they closed so many mental institutions and put the patients back on the street. Have you ever walked past a homeless person on the street babbleing to himself. They are supposedly better off out of an institutional situattion and controllable by medication. Who makes sure they take the medication? Just in the last two weeks a man in New York died when he was pushed in front of a subway train by one of these people. we sure do have to keep weapons away from dangerous people and guns are a good place to start but we also have to figure out a way to control the dangerous people who misuse these guns.
John Kimbrough January 11, 2013 at 01:20 PM
Well said Joe......
John Kimbrough January 11, 2013 at 01:26 PM
I think we need to have less guns in this country. Too many times, it seem to me, the "criminal" that we are talking about as having a gun is not a criminal at all but an unhappy, confused, lost, angry, fearful and disturbed individual. Sadly it seems that many of us in The US are like that or can be like that at times. We have become our own worst enemies and are waging war on ourselves. We are more suspicious then kind. We are more comdemning then understanding. We are more lost then focused...............We are heading down a path that will lead to more needless deaths .....


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