National Review Writer Defends Charleston Shooting Gun Sale Loophole
NRA-Backed Amendment Implicated In Provision Allowing Shooter To Buy A Gun
Blog ››› ››› TIMOTHY JOHNSON
National Review's Charles C.W. Cooke defended a provision in federal law that allowed the alleged perpetrator of the Charleston church mass shooting to obtain a firearm without undergoing a completed background check, arguing that Second Amendment rights purportedly protected by the provision outweigh the negative consequences.
On July 10, FBI Director James Comey announced that Dylann Storm Roof, the man accused of killing 9 people inside of Mother Emanuel AME Church in Charleston, South Carolina, was ineligible under federal law to buy the gun used in the attack because of his admission to police officers that he was an illegal drug user.
Due to paperwork errors, however, an employee at the FBI-administered National Instant Criminal Background Check System, which processes background checks for guns sold by licensed dealers, was unable to view Roof's arrest record, despite knowing that one existed.
Under the current background check system, if a check cannot be completed within three business days it may proceed at the gun dealers discretion in what is known as a "default proceed" sale. According to the FBI, this is how Roof's sale was completed.
This feature of the background check law exists because of efforts by the National Rifle Association to weaken the 1993 Brady background check bill that created the current background check system. The provision appeared in an NRA-backed amendment introduced by Rep. George Gekas (R-PA). The Gekas amendment allowed a "default proceed" to occur after one business day, which was later lengthened to three business days with a compromise amendment in the Senate.
In a July 13 post, Cooke defended this state of affairs, arguing that no change should be made in the "default proceed" provision because on balance it is "a means of protecting the innocent" from government interference with Second Amendment rights where the benefits presumably outweigh any negative consequences (emphasis original):
But it should be acknowledged for the record that the three-day exception was not a drafting error or an oversight, but a provision that was deliberately included within the law as a means of protecting the the [sic] innocent. Just as the police are forbidden from detaining suspects without charge -- and just as one cannot be imprisoned unless prosecutors can prove one's guilt -- the government is not permitted to remove your Second Amendment rights without good reason. If they can't find that reason within three days of your attempting to purchase a firearm, they have to stop trying.
While Cooke wrote that the sale to Roof "seems problematic," he concluded, "As a matter of general principle, however, the legal protections from which he benefited are sound. We would not seek to do away with due process because the guilty are occasionally left free to offend again. We should not diminish the Second Amendment because the state screwed up either."
This argument, however, presents a false choice between protecting due process and Second Amendment rights and ensuring that dangerous people are flagged by the background check system -- and is further evidence of conservative media's rush to dismiss any changes to gun laws following high-profile shootings. (While also indicating a willingness to balance the consequences of gun sales to dangerous people with the fact that some, although very few, eligible purchasers will have to wait to complete their checks.)
While a system that allowed the government to indefinitely delay the completion of background checks without justification would raise constitutional concerns, several states have laws extending the three day requirement to give investigators a reasonable chance to determine if a potential gun purchaser is prohibited from buying a gun.
For example, in Tennessee a dealer must allow authorities 15 days to complete an inconclusive background check. If the check is still not complete after 15 days, a dealer may proceed with the sale. Similar laws exist in North Carolina, California, Hawaii, and Washington, with time ranges of 10 to 30 days.
Some states even impose waiting periods -- which comply with the Second Amendment -- on gun sales where the buyer has successfully completed a background check.
There is strong evidence that the current "default proceed" waiting period of only three days allows prohibited purchasers to obtain firearms. As a 2009 report from Mayors Against Illegal Guns explained, "According to data provided by the FBI, default proceed sales are more than 8 times more likely to be associated with a prohibited purchaser than sales where the purchaser's background check is resolved within three days." Data collected by the FBI also indicates that in 2012 the "default proceed" provision put guns in the hands of 3,722 prohibited purchasers.
Polling has indicated strong support, even among gun owners, to extend the time authorities have to complete background checks.