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The Journal Gazette

Tuesday, February 27, 2018 1:30 pm

Fact check: NRA on mandates for states in gun background checks

Salvador Rizzo | The Washington Post

"Do you know that it is not federally required for states to actually report people who are prohibited possessors, crazy people, people who are murderers? . . . It is not federal law for states to report convictions to the NICS system. It's not federally mandated. That's the big question and I wish that this network had also covered this more." -- Dana Loesch, National Rifle Association spokeswoman, in a CNN town hall with survivors from the Parkland, Fla., shooting, Feb. 21, 2018

"Politicians could change this today; they could change it tomorrow. Did you know that right now 7 million prohibited possessors can walk into a gun store and legally purchase a firearm? . . . As it stands right now, only 38 states are reporting . . . [more than] 80 percent of these convictions to the NICS system. That's huge." -- Loesch, in an interview with George Stephanopoulos of ABC News, Feb. 25, 2018

The NRA for years has claimed credit for the National Instant Criminal Background Check System, a database established in 1998 to conduct background checks on gun buyers. We looked at this claim previously, and the evidence was thin.

But Loesch goes a step further: She laments that many states are not sending criminal and mental health records to the database, which means some people legally disqualified from owning guns are able to get them anyway.

The NRA has come under criticism since a high school shooting in Florida left 17 dead on Feb. 14. As part of its response, the influential gun-rights group has stressed its role in creating the background check system, with Loesch suggesting that greater efforts to feed the database would improve public safety.

We recently warned readers to be wary of what they hear about the background check system for gun sales. We're going to repeat that warning because Loesch's comments are at odds with the facts and with the NRA's own history.

The Brady Handgun Violence Prevention Act requires federally licensed firearms dealers to run background checks on gun buyers. Almost all of these searches are completed within two minutes by the NICS, a database launched by the FBI as part of the Brady law.

According to FBI data, more than 253 million background checks were conducted from Nov. 30, 1998, when the NICS launched, through the end of 2016. Nearly 27.5 million checks, or 11 percent of the historical total, were conducted in 2016 alone.

Federal law prohibits the transfer of guns to people convicted of a felony, those convicted of misdemeanor domestic violence offenses, fugitives from justice, users of controlled substances, those who have been ruled mentally incapacitated, unauthorized immigrants, people dishonorably discharged from the military and others.

But there are well-documented issues with the NICS database, because not all states report all their data on convictions and mental health adjudications. In other words, the NICS database does not include many people who are barred by law from possessing firearms.

Loesch seized on these deficiencies in her comments on ABC News and CNN. But her remarks leave out some relevant pieces of history.

The NRA at first opposed the Brady gun bill and spent heavily to defeat it in the late 1980s and early 1990s. During that debate, the NRA began to support an instant background check system for gun sales in 1988, according to an essay by Richard E. Gardiner and Stephen P. Halbrook from 1994. Gardiner was an assistant general counsel for the NRA and Halbrook has represented the group in several high-profile cases.

But after President Bill Clinton signed the Brady law in 1993, the NRA argued that the whole thing -- including the NICS -- should be struck down as unconstitutional. The case was Printz v. United States, and it went all the way to the Supreme Court.

The Brady law had taken effect in 1994, but the NICS database would not come until 1998. In those first few years before the NICS was up and running, many local law enforcement agencies would conduct background checks the old-fashioned way -- with phones and paper records and the like.

The NRA funded several lawsuits by local law enforcement officials challenging this arrangement as a violation of the 10th Amendment, which prohibits the federal government from "commandeering" the resources of the states. The NRA also filed an amicus brief in the Supreme Court seeking to overturn the U.S. Court of Appeals for the 9th Circuit, which had ruled in favor of keeping the background checks.

"If the Ninth Circuit's holding is upheld, then the federal government will be given a green light to commandeer the states to perform federal tasks for free, and the states will eventually be robbed of their funds, their resources and their independence; a pattern that will ultimately result in the destruction of federalism," the NRA brief to the Supreme Court says.

The Supreme Court upheld the Brady law almost entirely. But there was an exception. The justices by a 5-4 vote agreed with the 10th Amendment argument and struck down the part of the law requiring local law enforcement to conduct background checks. In deciding the Printz case, the Supreme Court said "the federal government may not compel the states to enact or administer a federal regulatory program."

"By forcing state governments to absorb the financial burden of implementing a federal regulatory program, members of Congress can take credit for 'solving' problems without having to ask their constituents to pay for the solutions with higher federal taxes," Justice Antonin Scalia wrote for the court. "And even when the states are not forced to absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects."

Since that ruling in 1997, Printz has been cited repeatedly by other courts.

"There's a long line of other cases where it's come up," Halbrook said.

Notice how Scalia's reasoning mirrors the NRA's argument in its brief. It also tracks with Gardiner's assessment of the case in his 1994 essay.

"The administrative costs inherent in conducting the checks, created by the interim provision of H.R. 1025, will be borne by already overextended local police agencies since no federal funds are provided by H.R. 1025 to local law enforcement," Gardiner wrote. "This, of course, means that other important law enforcement functions will suffer."

The court said states could keep running background checks voluntarily, and by and large they did. But in more recent years, the main problem with the NICS has been that many states struggle to supply mental health records because of privacy concerns or the logistical chore of rounding up these records from different agencies and health facilities, among other reasons.

"Mental health records not related to criminal case dispositions are maintained by agencies and organizations outside of criminal justice, such as private hospitals, state mental institutions, state health agencies, and civil courts," according to a 2013 report by the National Consortium for Justice Information and Statistics. "Since many of the records were not developed for criminal justice use, there are privacy and other challenges to sharing those records, including some records with missing required personal identifying data."

The Government Accountability Office in 2012 reported that "most states are not providing noncriminal records" to the NICS.

Essentially, Loesch says the states should be providing more complete data to the NICS -- but the NRA helped convince the Supreme Court that federal law could not force the states to run this regulatory program. And some experts say the court's ruling to this day hamstrings states' ability to share the very records Loesch says are missing.

"Case law suggests that a federal statute requiring states to disclose records to the FBI would violate the 10th Amendment," according to the Giffords Law Center to Prevent Gun Violence. "In Printz v. U.S. . . . the Supreme Court struck down the interim provisions of the Brady Act obligating local law enforcement officers to conduct background checks on prospective handgun purchasers. The court held that Congress cannot compel state officials to enact or enforce a federal regulatory program."

Stefan Tahmassebi, the NRA's deputy general counsel, said he did not see a contradiction between the NRA's favorable view of the NICS database and its hostile litigation posture in the 1990s.

"You had an unfunded federal mandate," he said. "When the federal government has the right to mandate that a state or local official engage in work on the federal government's behalf, and there's no funding for it, the federal government can basically destroy the federalist system."

Asked whether the NRA would have sat out the Printz case had the Brady law provided funding for background checks, Tahmassebi said he was not in a position to know. But he pointed to the NICS Improvements Act of 2007, which gave financial incentives to states for improving their reporting to the database. The NRA supported that legislation, he said, because incentives are fine.

"But when the federal government says, 'You will become my minion' . . . that is not permissible, and is incredibly unhealthy and dangerous," he said.

Loesch also says 38 states fail to send at least 80 percent of required records to the NICS -- a claim that NRA chief executive Wayne LaPierre also made recently. As we discovered when we fact-checked LaPierre, these figures are outdated and based on 2010. By the end of 2016, 29 states failed to reach the 80 percent threshhold.

Echoing LaPierre again, Loesch said "7 million prohibited possessors can walk into a gun store and legally purchase a firearm." The 7 million figure comes from the same report that mentions the 38 states, according to an NRA spokesman. But it, too, is outdated, because it's also based on 2010 figures.

Is there an updated number for 2016? No.

One last thing: This estimate is of 7 million convictions, not people. Some individuals are in the NICS database several times because of offenses in multiple states, for example. So Loesch is off-base talking in terms of "7 million prohibited possessors."

The NRA's love-hate relationship with the NICS database is something to behold. The group once fought to strike down the law that created the database. Failing that, the NRA still managed to defang one of the law's provisions.

But now, the NRA and Loesch are concerned that the NICS is not getting all the records it needs. The irony is that the NICS might be getting those records -- or getting more of them, at least -- had the NRA not worked to undermine the Brady law in the early 1990s. Getting those records might be easier today if not for the legal precedent the NRA helped create in the Printz case in 1997. (Loesch also uses outdated figures and portrays the NICS database as spottier than it is.)

The NRA says its past and present views on the NICS are not in contradiction, but to see the logic in that statement requires Olympic-level mental acrobatics. The NRA argued against a federal mandate -- and now Loesch complains "it's not federally mandated." The bottom line is that Loesch's position on the NICS represents a flip-flop for the NRA. For this, we award Loesch an Upside-Down Pinocchio.