FACT CHECK: Did The NRA Back A Lawsuit That Weakened Background Checks?
Media Matters research fellow Timothy Johnson tweeted recently that the National Rifle Association (NRA) supported a lawsuit that weakened the FBI background check system for firearm purchases.
The NRA’s new talking point is that its bad states don’t submit all disqualifying records to the background check system. What the NRA won’t say is that states can’t be required to submit records because of an NRA backed lawsuit: Printz v. U.S. https://t.co/vPrjLEREbw
— Timothy Johnson (@timothywjohnson) February 22, 2018
“States can’t be required to submit records because of an NRA backed lawsuit: Printz v. U.S.,” the tweet said.
The NRA did back a case in the ’90s that made it voluntary for states to submit background check records to the FBI, although record gaps are often due to factors unrelated to the court ruling.
In light of the Parkland, Fla. school shooting that left 17 dead, the NRA has called for improvements to the National Instant Criminal Background Check System (NICS), the FBI-run database that is used to conduct background checks.
The NRA has supported legislation in recent years to shore up the system like the NICS Improvement Amendments Act of 2007 and the Fix NICS Act that congressional lawmakers are currently considering.
Johnson and other commentators have been critical of the NRA for speaking out in favor of improvements to NICS. They claim that the NRA supported a legal challenge to the Brady Act in 1996 that helped weaken the database in the first place.
The 1993 Brady Act mandated background checks to prevent people with severe mental illness and criminal records from purchasing firearms. To establish a comprehensive background check system, the law created NICS and instructed the attorney general to “investigate the criminal records system of each State and determine for each State a timetable by which the State should be able to provide criminal records on an on-line capacity basis.”
The bill gave the attorney general five years to set up NICS. Until then, it temporarily required local chief law enforcement officers (CLEOs) to conduct background checks for gun purchases in their jurisdiction using any local, state or federal records at their disposal – an obligation that two sheriffs from Arizona and Montana challenged in Printz v. U.S.
Siding with the plaintiffs, the Supreme Court ruled that the requirement was unconstitutional. “The Constitution does not leave to speculation who is to administer the laws enacted by Congress,” it said.
The president and the executive branch must assume that role, but with its temporary provisions, the “Brady Act effectively transfers this responsibility to thousands of CLEOs in the 50 States, who are left to implement the program without meaningful Presidential control,” the court ruled.
States can still carry out federal initiatives, but only voluntarily. “It’s usually called the anti-commandeering principle,” Noah Feldman of Harvard Law School explained to The Daily Caller News Foundation. “The federal government can provide incentives to carry out federal law, but it cannot require state officials to do so as a condition of employment.”
The NRA filed an amicus curiae brief in support of the plaintiffs and even funded their case which was argued before the Supreme Court by Dr. Stephen Halbrook, a longtime NRA legal consultant. Jay Printz, one of the plaintiffs in the case, later joined the NRA’s Board of Directors in 1998.
Gun control advocacy groups emphasize that the NRA’s amicus brief not only backed the plaintiffs’ legal challenge, but also urged the Supreme Court to void the entire Brady Act, including NICS.
Such groups often cite the brief’s conclusion that “the whole Statute must be voided.”
Halbrook disagrees with this characterization. “You have to read that in the whole context of what they were saying in the brief,” he told TheDCNF. “Read through it. They don’t even mention NICS.” The NRA, he says, feared that if only some of the temporary provisions were struck down, the ruling could have led to an unintended consequence: the creation of gun owner registries at the state level.
The NRA brief pointed out that until NICS was set up, the Brady Act required federally licensed gun merchants to submit background check paperwork to CLEOs for new gun sales. If CLEOs no longer had to conduct background checks, they also didn’t have to comply with a different temporary provision – the Brady Act’s requirement to destroy those background check requests. As a result, CLEOs could have accumulated enough personal information to create a registry of local gun owners.
The NRA thus urged the Court to void all of Brady’s temporary provisions. “Severing only the constitutionally flawed portions of the statute would leave a statute that creates a registration system at the level of chief law enforcement official,” the brief argues. “Congress without a doubt intended not to enact any kind of registration scheme.”
(The NRA sued the attorney general after NICS became operational in 1998 citing similar concerns about the Justice Department retaining completed NICS background check requests for up to six months in an audit log.)
The Supreme Court ultimately did not scrap NICS, but it did limit states’ obligations under the Brady Act; just as CLEOs cannot be forced to conduct background checks, states cannot be forced to turn in mental health and criminal records.
“Congress can’t compel states,” Lawrence Keane of the National Shooting Sports Foundation (NSSF), a firearms industry group, told TheDCNF. “The impact is – for example, mental health records are not being submitted to the FBI to be put into the federal databases.”
Ever since it came into effect in 1998, NICS has been plagued with significant – albeit narrowing – gaps in criminal and mental health record keeping. A January Justice Department study found that 22 states have yet to fully automate their criminal history files as of 2016. The database, moreover, only had access to five states’ domestic violence incident reports.
These gaps have had severe consequences. NICS, for example, did not have records flagging the court-ordered mental health treatment of the perpetrator of the 2007 Virginia Tech shooting who killed 32 victims.
Experts, however, caution against examining the gaps in NICS solely in the context of the Printz ruling. “It wasn’t that pro-gun states put their records in and anti-gun states didn’t,” Keane said.
Keane pointed out that even states like Massachusetts failed to submit mental health records to NICS – not because of ideological opposition, but due to the state’s privacy laws which have since been amended.
These types of complex legal hurdles often contributed to oversight by state officials. “Frankly, often times the state legislatures were not aware that their records were not sent in,” said Keane.
A 2012 Government Accountability Office (GAO) report identified several other technological and logistical challenges that many states face.
“DOJ officials noted that technological challenges are particularly salient for mental health records because these records originate from numerous sources within the state – such as courts, private hospitals, and state offices of mental health – and are not typically captured by any single state agency,” reads the report.
Keane emphasized bureaucratic errors as well, especially as it relates to NICS reporting by federal agencies. The reason? “Incompetence,” he said. “A failure to do their job.”
The Air Force, for example, failed to report multiple incidents to the FBI – including domestic violence charges and an escape from a behavioral health facility – that could have blocked the 2017 Texas church shooter, who killed 26 people including an unborn baby, from purchasing a gun.
A series of records mix-ups similarly enabled the 2015 Charleston church shooter to purchase a gun and kill nine people despite having admitted to charges of narcotics possession.
The measures that the NRA has supported to help prevent these types of tragedies have conformed to the principles that the Supreme Court laid out in the Printz ruling.
Instead of forcing states to comply, the Fix NICS Act would, for example, provide financial incentives and technical support to encourage states to voluntarily improve NICS reporting.
Feldman explained that it is not unusual for the NRA to support strengthening NICS after backing a case in 1996 that challenged the legislation that created it.
“A big case like Printz has broader consequences; it establishes broader principles of constitutional law … general principles that would then be cited by both sides of the spectrum,” Feldman told TheDCNF. There are “always ironies – and it’s perfectly reasonable to see irony – but what it is, is the structure of constitutional law.”
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