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Opposing Lawmakers Unite on Background Check Improvements

Jeff Johnson | Congressional Bureau Chief | Friday, September 26, 2003

Opposing Lawmakers Unite on Background Check Improvements

Capitol Hill (CNSNews.com) - What do you get when you put a current and former board member of the National Rifle Association (NRA) in the same room with two of the most vehemently anti-gun members of the House and Senate? On Thursday, the answer to that question was: agreement.

Sen. Larry Craig (R-Idaho), a current NRA board member, joined former NRA board member Rep. John Dingell (D-Mich.) and anti-gun colleagues Sen. Chuck Schumer (D-N.Y.), the author of the Brady gun control law, and Rep. Carolyn McCarthy (D-N.Y.), who was elected to Congress on a gun control agenda after the murder of two family members, to reintroduce a nearly identical version of the Our Lady of Peace Act (H.R. 4757).

The legislation was inspired by a shooting committed by a man who was only able to pass a background check because the system had no record that he was disqualified from purchasing a firearm due to mental illness.

The lawmakers acknowledged the irony in their appearing together.

"You're looking up here and you're thinking, 'Strange bedfellows,'" Dingell told reporters. "We're not. We're all patriotic Americans. We're all interested in one thing: Seeing to it that the law is enforced and that criminals are caught."

Schumer also noted the unique nature of the foursome.

"You should take a look around and remember who is sitting next to you because we're making history today at this press conference," Schumer encouraged. "We've been able to set aside our differences and agree on an issue and come together on an extremely important bill."

Current recordkeeping by states called 'sorry mess'

The legislation, which has been renamed the "NICS Improvement Act," is designed to eliminate current "gaping holes" in the information provided by states to the National Instant Background Check System (NICS), the database used by federal law enforcers to approve or deny gun purchases from licensed gun dealers and at gun shows nationwide.

"While it has improved mightily, and we are told by the current Justice Department that we are now near a 91 percent [rate] as it relates to 'proceed' or 'deny' when a background check occurs," Craig said, "it still has holes in it and areas of non-compliance."

Schumer agreed.

"The federal NICS system is no better than the states' records," Schumer said. "Too many states do not keep their records updated."

"Our bill starts on one simple, self-evident premise," Dingell added. "A background check can't stop criminals from getting guns if the system doesn't know who the criminals are."

The Justice Department has told Congress that 20 states currently do not have automated records of felony criminal convictions. Additionally, 40 states do not have or make available to the NICS automated records of disqualifying mental health conditions.

Domestic violence misdemeanor convictions, which also disqualify potential gun buyers, are not made available to the NICS by 14 states. Eight states still do not notify the NICS when domestic restraining orders are issued, another disqualifying factor.

"Quite frankly, the history of record keeping by the states is a sorry mess," Dingell observed. "The result is that thousands of convicted felons and other prohibited individuals obtain firearms because of sloppy and ineffectual record keeping."

McCarthy concurred with Dingell's appraisal and said she is certain the legislation has the potential to save lives.

"Thousands of people get through this system," McCarthy said, "and we can stop that now."

Bill expected to pass, objections to previous proposal addressed

The bill would have passed in the 107th Congress, the four agreed, but the Senate simply ran out of time to address the primary objection, which was that the legislation contained an "un-funded mandate" to the states.

"This bill is going to pass. It almost passed last year, but Sen. [Orrin] Hatch (R-Utah) objected," Schumer explained. "We have worked closely with Senator Hatch. He's now a sponsor of our bill."

The updated proposal would provide $750 million "to establish or upgrade information and technologies for firearms eligibility determinations."

An additional $375 million would be authorized for state judicial record-keepers to create "policies, systems and procedures for the automation and transmission of arrest and conviction records" and domestic restraining orders.

McCarthy, a nurse before entering politics, acknowledged that the $1.25 billion price tag over three years is a large sum in tight budgetary times, but she believes it is a small investment considering the potential return.

"The money that we spend for health care for those who do survive their [gunshot] wounds is up into the billions of dollars a year now," McCarthy said. "Anything that we can do to prevent injuries, and certainly killings, we will make that money up in health care costs."

The bill would also use a "carrot and stick" approach to entice states to provide the needed information and punish those that do not.

Under the pre-existing National Criminal History Improvement Program, states are required to supply 10 percent matching funds to get access to the more than $300 million in federal grants available for the purpose of updating their criminal conviction records.

But the NICS Improvement Act waives the matching funds requirement if a state automates and shares 90 percent of the required information within five years.

Conversely, if a state fails to reach a mid-term goal of providing 60 percent of the required information, 3 percent of its federal crime-fighting grants can be withheld if the attorney general determines that a state is not making a good faith effort at compliance.

After five years, a state must supply 90 percent of the mandatory information, or the attorney general is required to withhold 5 percent of those grants unless he certifies that the state is making a "reasonable effort to comply."

Other changes seek to address public opposition to existing NICS system

A requirement of the NICS Improvement Act that particularly appeals to pro-gun lawmakers is that states must also notify the federal government whenever the condition that disqualified a purchaser - such as an arrest for a felony followed by an acquittal or a domestic restraining order that expires or is withdrawn - changes.

Failure to do so would constitute non-compliance with the law and could subject the state to the penalties described above.

Additionally, the act specifies that states need not provide detailed information to the NICS regarding individuals disqualified from owning a firearm based on a mental illness.

Disability rights activists had objected to mandatory disclosure of the information for fear that a patient might encounter discrimination if details of their condition became public knowledge.

The law specifies that NICS only be told that a person has been diagnosed with a condition that meets the law's definition of a "disqualifying mental disease or defect."

The lawmakers noted that gun dealers will have no idea that a person has been forbidden to purchase a firearm because of a mental illness. In fact, the only response the NICS gives the firearms dealer is a one-word answer that they may "proceed" with the sale or that it has been "denied."

As CNSNews.com previously reported, Larry Pratt, executive director of Gun Owners of America (GOA), said that the original bill risked the privacy of the mentally ill and made a "very incorrect assumption" about mental illness.

"Just on pragmatic grounds," Pratt observed, "knowing that someone has had a mental problem in the past has absolutely nothing to do with predicting future violent behavior."

Pratt pointed to research published in Violence and Mental Disorder: Development in Risk Assessment by John Monahan and Henry Steadman (University of Chicago Press). The study found that mental health professionals could not accurately predict violent behavior even in a group of known mentally ill criminals with a history of violence.

"Psychiatrists and psychologists are accurate in no more than one out of three predictions of violent behavior over a several-year period among institutionalized populations that had both committed violence in the past (and thus had high base rates for it) and who were diagnosed as mentally ill," the report stated.

"They would have done better flipping a coin," Pratt quipped.

The individual responsible for the murders that inspired the original legislation was not arrested for two previous violations of a restraining order, offenses that would have carried mandatory jail time had he been arrested.

"Why didn't they pick him up?" Pratt asked rhetorically.

Pratt labeled the original legislation an attempt to exploit a tragic event and accused Schumer and McCarthy of wanting to chip away at the Second Amendment right of individuals to own and possess firearms.

"It's just another 'Schumer Company' effort to expand the number of Americans who are 'legally' prohibited from owning a gun," Pratt added. "And what Schumer is talking about is not going to make anybody any safer at all."

Lawmakers believe bill could become law in this session of Congress

"The system is in place now. It is functioning and functioning very well with the information that's in it," Craig said. "Now, we simply have to improve the information flow."

Craig added that the administration seems to support the idea.

"I have visited briefly with [Attorney General] John Ashcroft about it," Craig added. "He said, 'You get me the authorization; we'll work hard to work with you to make that money happen.'"

McCarthy believes the proposal could bypass the normal legislative calendar in the House.

"We were able to pass it on suspension last time," McCarthy recalled, "and we're hoping that we can do it again this year that way."

Craig said the bill will probably also pass the Senate by unanimous consent.

"Certainly, we want to move this as quickly as possible. The value is in getting the law passed," Craig said. "Our intent is getting it into the law books and getting the money out."

Craig also had a thinly veiled warning for other senators who might want to try to amend the proposal.

"We could spend time on the floor doing so, [but] I think that both Senator Schumer and I would guard the bill for what it is and that it not become a vehicle for other purposes," Craig continued. "If it did, it would probably then fail; down it would go."

Schumer agreed that the Senate will probably pass the bill without debate and lamented that the cooperation between the four lawmakers, who typically hold stridently opposing views on gun issues, is so rare that it is newsworthy.

"I just wish that we had more days in the Congress and in America like this," Schumer concluded.

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