Hearing of the Crime and Terrorism Subcommittee of the Senate Judiciary Committee - National Gun Background Check System
Statement
During a Senate hearing today, U.S. Senator Charles E. Schumer revealed that the national gun background check system is still riddled with gaps and loopholes due to states failing to turn over records to the federally run database. In response, Schumer pushed the Department of Justice to step up enforcement efforts by cutting funding for states that fail to meet federal reporting requirements.
Under a 2007 law, the Attorney General has the ability to punish states that fail to submit at least 50% of their records to the federal database by withholding 3 percent of the states' grant funding from the Justice Department. So far, however, the Attorney General has failed to exercise this authority. Schumer said that must change.
"We will never get states to comply with the reporting requirements if the federal government is not following through in imposing the penalties," Schumer said. "We cannot continue to turn a blind eye on this failure to comply with the law. If we do, we will be continuing a very bad trend. As a nation, it seems we are moving backwards when it comes to guns."
The gaps in the national gun background system persist despite Congressional efforts four years ago to beef up compliance. After the Virginia Tech shooting in 2007 highlighted dangerous loopholes in the national gun background check system, Schumer pushed to pass the National Instant Criminal Background Check System (NICS) Improvement Act of 2007. That law requires states to report mental health records, domestic violence arrests and other information to the national background check database.
But compliance is insufficient. According to the FBI, 52 out of 61 federal agencies have reported no mental health records into NICS, and 58 agencies have reported no records of drug abusers. In addition, 23 states and the District of Columbia have submitted fewer than 100 mental health records to the NICS database. Seventeen states have submitted fewer than 10 records, and 4 have still not submitted any at all. Overall, the Government Accountability Office estimates that there are still 1.5 million relevant mental health records outstanding.
"The data suggests that our gun background check system is still riddled with loopholes," Schumer said.
In addition to pressuring the Justice Department to fully enforce the 2007 law, Schumer urged the passage of new legislation intended to improve reporting by strengthening both the incentives and penalties for states. That bill, known as the Fix Gun Checks Act, is sponsored by Schumer in the Senate and Rep. Carolyn McCarthy in the U.S. House.
The Senate hearing included testimony from Ms. Patricia Maisch, a Tucson woman who wrestled the gun clip away from Jared Loughner before the accused gunman could reload and claim more victims in the deadly shooting last January that seriously injured Congresswoman Gabrielle Giffords. Ms. Maisch was expected to urge the passage of the Fix Gun Checks Act.
A copy of Schumer's statement, as prepared for delivery, appears below.
Statement by Senator Charles E. Schumer
Senate Judiciary Subcommittee on Crime and Terrorism
November 15, 2011
As Prepared For Delivery
Good afternoon. I want to start by thanking Senator Whitehouse, the chair of this committee, for convening this hearing and allowing me to serve as chairman for the day. Making sure that guns stay out of the hands of criminals, drug addicts, violent abusers, and the mentally ill has been important to me as long as I have been in Congress.
I worked hard to make sure that the National Instant Criminal Background Check System (NICS) was enacted, implemented, and in place. Since it went online in 1998, the background check system has stopped more than 1.6 million people who are prohibited by law from owning guns from going through with their purchases.
I want to say that again -- 1.6 million people--criminals, fugitives from justice, domestic abusers, drug addicts--might not have been prohibited from buying guns if not for this system.
And, it is my firm belief that NICS is the textbook example of a law that is well-balanced and well-tailored.
It poses no threat to millions and millions of law-abiding gun owners across the country, while keeping guns out of the hands of those who are most likely to misuse them to terrible ends.
Let me be clear about this: I understand that in large parts of my state of New York, and across the country, gun ownership is a way of life, and I respect that.
The Heller decision is a decision I welcomed. I have consistently talked about the right to bear arms in Constitution. I believed in it even before Heller. But no amendment is absolute.
Some of my colleagues on the right are absolutely correct to say, "Why should the First, Third, Fourth, Fifth, Sixth and Eighth Amendments be expanded as far as we can, and the Second Amendment be seen through the pinhole of militias?"
Well, I agree. I think all of the amendments should be read to afford the individual rights that their text was drafted to protect. But there's always a balancing test.
And that's why NICS has consistently been viewed as an appropriate way to carry out the government's aims of protecting individuals' rights and keeping people safe -- ever since it replaced state-led checks that were struck down by the Supreme Court in US v. Printz.
Getting NICS in place was a major, watershed event in public safety, and I am proud of my role in crafting it when I was in the House.
But just having it in place, and on the statute books, isn't enough.
We have to make sure that states, and federal agencies, are actually turning in the records that they need to turn in. The background check database is only as good the records that it stores.
Today we are going to examine NICS' successes and failures so far, and examine how we can close the gaps in our system.
Here are some facts from the FBI: 52 out of 61 federal agencies have reported no mental health records into NICS; 58 federal agencies have reported zero records of drug abusers, including the DEA, the Department of Defense, and ICE; 47 out of 61 have reported no records at all (although I understand that some have reported to another database, the Interstate Identification Index or the "Triple I"); 23 states and the District of Columbia have submitted fewer than 100 mental health records to the NICS database; 17 states have submitted fewer than 10 records, and 4 have still not submitted any at all. GAO estimates that there are still 1.5 million relevant mental health records outstanding.
So the data suggests that our gun background check system is still riddled with loopholes.
And this is only the beginning. The truth is, we do not even know the full extent of the non-compliance with the NICS law. That's because many states have failed to even give an estimate to the federal authorities on how many relevant records EXIST, let alone turn these records over to the national database. This has apparently prevented the Attorney General from being able to provide a comprehensive list of which states are in compliance with the NICS reporting requirement and which are not.
This lack of accountability is unacceptable. 2011 was the first year that the Attorney General could withhold 3% of a states' Byrne JAG funding, at his discretion, for having fewer than 50 percent of its relevant records in the NICS database. But the Attorney General has so far declined to do this.
Today, I am calling on Attorney General Holder to fully enforce the law and begin cutting funds for states that fail to meet the reporting requirements. We will never get states to comply with the reporting requirements if the federal government is not following through in imposing the penalties.
Right now, based on the numbers that we do have so far at least 8 states would be at risk of losing dollars if the Justice Department was fully enforcing the law. (Alaska, Delaware, Georgia, Kentucky, Louisiana, New Hampshire, Vermont, Wyoming). There are likely many more.
We cannot continue to turn a blind eye on this failure to comply with the law. If we do, we will be continuing a very bad trend. As a nation, it seems we are moving backwards when it comes to guns.
Earlier this week, the New York Times reported on how many states are actively taking steps to make it easier for felons to regain their right to own a gain. In some states, it is now easier for a felon to legally reacquire a gun than to regain his right to vote.
In addition, as soon as tomorrow, the House of Representatives is expected to approve a concealed-carry measure. After that, it would be sent to the Senate.
Two years ago, we defeated this measure on a very close vote. This time, I'm not so sure what will happen.
The legislation would take the carefully crafted gun laws in New York and other states and tear them up.
It seems perverse that the first gun-related measure that this Congress plans to take up since the Tucson shooting is one that seeks to dismantle states' ability to protect their own citizens. It is like a bad dream.
Clearly, our nation's gun laws are under assault enough as it is. So we should not make matters worse by shrinking from the full enforcement of the laws that remain on the books.
That's why it's time to toughen our approach when it comes to NICS.
In 2007, we responded to the horrible tragedy at Virginia Tech, in which 32 people were killed by a gunman who had been adjudicated mentally ill -- but whose records never made it into the background check system.
I took the lead in drafting improvements to NICS -- to increase the incentives of states to get their records into the system, and to allow the Attorney General to withhold benefits from states that didn't.
This law -- the NICS Improvements Amendments Act -- also incentivizes states to give those who have been adjudicated to be mentally disabled to have that judgment removed from their record if they are no longer dangerous to themselves or others.
The law is so well-balanced that it was passed with the support of the National Rifle Association.
Most important, the NICS Improvement Amendments Act had a palpable impact on the quality of federal background check process.
Four years after the mass shooting at Virginia Tech, the total number of federal and state mental health records in the NICS Index has roughly tripled -- from less than 500,000 to 1.3 million records.
However, there are still about 1.5 million mental health records missing, according to GAO estimates.
In addition, it remains the case that very few federal agencies have reported any relevant records into the NICS database.
I am very sorry to say that despite its successes, the NICS database, despite improvements, remains dangerously incomplete.
For example, it is entirely possible that Jared Loughner might not have bought the Glock that so tragically killed six people and wounded 13 others, including Congresswoman Gabrielle Giffords, that horrible day in Tucson almost 11 months ago -- if the Army had reported the fact that he admitted drug use and was denied enlistment into the NICS database.
I don't want there to be any more "what if's"-- I want to make sure that we marshal every resource we have at our disposal to make the background check database complete, once and for all.
Gun violence is always irrevocable and tragic. But it seems even less understandable when there's a chance that it could have been prevented.
That's why I've introduced the Fix Gun Checks Act here in the Senate.
This bill would improve the incentives for states to report the records that they have into the NICS database, and require the Attorney General to start withholding funds from those that don't. Specifically, the bill would require DOJ to withhold 15 percent of a state's Byrne JAG grant money--rather than allowing DOJ to withhold 4 percent of the money---beginning in 2013.
The Fix Gun Checks Act would require everyone to redouble their efforts if states want to continue to receive grant money.
In addition, this bill would also close the "private sale loophole" once and for all.
An estimated 40 percent of gun sales are conducted by private sellers, which are not licensed by the federal government. My bill would require these sales to be subject to background checks as well.
Finally, the bill would require each federal agency to report to the Attorney General twice a year the relevant records that it has in its possession.
I know that a lot of you in this room have been deeply affected by this issue, and I am looking forward to hearing from the witnesses today to get to the bottom of how we can improve the background check system and get it working better for law-abiding citizens
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