A National Rifle Association-authored opinion piece in The Hill is rife with misleading claims about legislation that aims to expand background checks for gun sales and fix current deficiencies in the background check system.
Chris Cox, a regular columnist and top lobbyist for the NRA, claimed in an op-ed that proposed legislation to expand background checks would create a national gun registry and “criminalize” transfers of firearms between family members. In fact, expanded background check legislation reported to the Senate on March 12, known as the Fix Gun Checks Act of 2013, contains an exception for transfers between family members and federal law already prohibits the establishment of a national gun registry. Cox also misled about the effectiveness of the current background check system as an argument against making improvements.
In his March 18 column titled, “A universally bad idea,” Cox claimed, “A mandate for truly 'universal' background checks would put the federal government squarely in the middle of every sale, loan or gift of a firearm between private individuals. In other words, it would criminalize all private firearms transfers, even between family members or friends who have known each other all of their lives.”
The Fix Gun Checks Act, the leading piece of background check legislation, would require a criminal background check for nearly every gun sale to occur with some important exceptions. The legislation exempts “bona fide gifts between spouses, between parents and their children, between siblings, or between grandparents and their grandchildren” from the background check requirement. Other exemptions waive the background check requirement for temporary transfers for hunting and other sporting purposes.
The exemptions laid out in the Fix Gun Checks Act mirror the Obama administration's policy proposal on reducing gun violence, which called for background check legislation with “common-sense exceptions for cases like certain transfers between family members and temporary transfers for hunting and sporting purposes.”
In addition to expanding background checks, the Fix Gun Checks Act also aims to improve the background check system by using a carrot-and-stick approach to incentivize states to submit disqualifying records into the background check system that are currently missing.
Cox suggested that the ultimate goal of background check legislation was to create a national registry of gun owners in the United States and that support for such legislation by President Obama and other politicians “has nothing [to] do with public safety” :
The leading culprits in this case -- President Obama, Sens. Charles Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.) and Rep. Nancy Pelosi (D-Calif.), to name a few -- are lifelong anti-Second-Amendment politicians. Their obsession with “universal background checks” has nothing [to] do with public safety. Rather, they rightly see such a system as a major advance toward the holy grail of anti-gun laws: gun registration.
In fact, Obama's own Justice Department recently reported that the effectiveness of a “universal” background check system “depends on ... requiring gun registration.” In other words, the only way that the government could fully enforce universal background checks would be to mandate the registration of all firearms in private possession -- something that has been prohibited by federal law since 1986.
The Fix Gun Checks Act, however, would not impose any additional paperwork requirements upon transfers of firearms between private individuals compared to what already occurs for sales at gun stores. When an individual purchases a firearm from a licensed dealer, that individual's personal information is processed by the National Instant Criminal Background Check System (NICS). In order to comply with the 1986 Firearm Owner's Protection Act, which prohibits the creation of a national gun registry as Cox himself notes, NICS must destroy any identifying information by its next operational day. If Fix Gun Checks were enacted, licensed firearms dealers would oversee private transactions by running a background check on the purchaser for the seller.
Despite the fact that proposed expanded background check legislation plainly does not change current federal law prohibiting the creation of a national firearms registry, the NRA routinely claims that legislation would automatically create a registry that could be used in the future to confiscate privately owned firearms.
Cox's claim that the Justice Department has stated that “the effectiveness of a 'universal' background check system 'depends on ... requiring gun registration'” is also untrue. The NRA has trumpeted a memo authored by a researcher at the National Institute of Justice as evidence of Obama administration support for gun registration, however the Associated Press reported that, “A Justice Department official called the memo an unfinished review of gun violence research and said it does not represent administration policy.”
As the AP also notes, the memo predates the Obama administration's official policy paper on gun violence -- which does not call for registration -- by two weeks.
Throughout his column, Cox attacks the effectiveness of the NICS, even though the system and state agencies have combined to stop over 1.5 million gun sales to individuals prohibited from possessing firearms since 1998.
Without including a citation, Cox claimed that NICS is “bogged down by hundreds of thousands of records that it shouldn't contain.” But the exceedingly low number of individuals who successfully appeal erroneous denials by the background check system compared to the total number of background checks processed by the system suggests that NICS is largely accurate.
The FBI, which administers NICS, noted in a 2011 operations report that that of 78,211 denial decisions that year, less than 20 percent of the 17,203 appeals were successful. In that year, over 16 million total checks were completed. Put another way, using similar 2010 data, approximately just 1 out of 1,729 gun sales conducted by licensed firearms dealers resulted in a denial that was successfully appealed.
Cox further criticized NICS by claiming that "[l]ack of enforcement is also crippling the current system" on the basis of the low number of prosecutions conducted by DOJ of individuals who lie about being prohibited from owning a firearm on the background check form. But the fact that federal attorneys only prosecuted only a small number of these cases is not strong evidence to suggest that the background check system did not function by stopping the sale of the firearm to the prohibited person.
In fact, Cox's federal prosecution statistic does not take into account instances where local law enforcement initiate criminal investigations against individuals suspected of lying on the background check form. According to Washington Post fact checker Glenn Kessler, a DOJ official said that local police departments often dispatch law enforcement officers to gun stores where a fugitive from justice has attempted to buy a firearm, meaning that federal law enforcement does not need to become involved.
Furthermore, according to testimony by U.S. Attorney Timothy Heaphy, DOJ must use its resources to target instances where prohibited individuals actually obtain a firearm as opposed to those cases where the prohibited person lied, but was stopped from obtaining a gun by NICS:
SEN. JOHN CORNYN: And I know you've been asked about this before, but I can't resist asking you about it again. People who lie on background checks, the record of prosecuting those individuals is pathetic, wouldn't you agree?
HEAPHY: Well I'm glad you asked because I didn't get a chance to answer it when Senator Graham asked the question. As you know, from your experience Senator Cornyn, we need evidence to prove that a crime was committed. And because someone applied to get a gun and went through a background check and there was a misstatement on the form, is not in and of itself, constitute evidence that it was an intentional falsehood.
The common defense in those cases is, “I didn't know that I was prohibited. I didn't know that I had conviction which disqualified me or that I had something in my background.” And that's sometimes credible because, again, they could go down the street to a gun show and get the same weapon without having had to submit a form.
SEN. CORNYN: It's credible -- it's credible for them to say, “I didn't know I had a conviction,” but yet to say on the background check, “I have no conviction” ?
HEAPHY: Again, Senator, we have to have evidence that it was an intentional falsehood, that the fact that it was false was not enough. It's a -- it's a difficult case to prove. Even if we prove it, Senator Cornyn, fully a third of those cases result, unfortunately, in no finding of guilt. Another 37 percent result in a sentence of a year or less.
We are evaluating every case on a spectrum of danger, and the gun background check worked there. We focus our resources must more aggressively on people that actually obtained firearms and used them. [A Hearing On Proposals To Reduce Gun Violence via Nexis, 2/12/13]