The National Rifle Association is defending the loophole in federal law that allowed the alleged killer of nine people in a Charleston, South Carolina, church to buy a gun without a completed background check by downplaying that thousands of dangerous people exploit the loophole each year to obtain guns.
On July 10, FBI Director James Comey announced that Dylann Storm Roof was ineligible under federal law to buy the gun used in the attack because of a prior admission to drug possession.
Due to paperwork errors, however, an employee at the FBI-administered National Instant Criminal Background Check System (NICS), which processes background checks for guns sold by licensed dealers, was unable to locate and view Roof's arrest record, despite knowing that one existed somewhere.
Under the current background check system, if a check cannot be completed within three business days, it may proceed at the gun dealer's discretion in what is known as a “default proceed” sale. According to the FBI, this is how Roof's sale was completed.
In a July 17 post on its lobbying website, the NRA sought to defend the loophole it helped create by attacking a legislative proposal by Rep. James Clyburn (D-S.C.) to eliminate “default proceed” sales, arguing that the congressman was “exploiting a recent tragedy.”
The NRA described “default proceed” sales as “a critical safety valve” to shield prospective gun purchasers from undergoing delays in the completion of background checks. (More than 90 percent of checks processed by NICS are completed instantly.)
The gun group then offered a deceptive analysis of FBI data to downplay the thousands of gun sales to prohibited persons through “default proceed” sales each year, concluding that even in spite of these sales -- one of which supplied the gun used in the racially-motivated Charleston mass murder -- there isn't “a public safety crisis demanding congressional intervention”:
According [to] the FBI's most recent NICS operations report, 9% of FBI NICS checks in 2014 were delayed “for additional review.” The report does not go on to detail how many of those delays extended beyond three days. Nevertheless, based on the total number of NICS check the FBI ran in 2014, these delays affected some 743,102 people.
Meanwhile, the delays resulted in only 2,511 actions for firearm retrievals (or three-tenths of one percent of total delays). Thus, in over 99.6% of delayed cases, the delay was less than three days, the FBI could not substantiate the person was prohibited, or the FFL did not transfer the firearm. That hardly seems to indicate a public safety crisis demanding congressional intervention.
The statistic offered by the NRA that suggests “default proceed” sales to prohibited persons make up less than one percent of the total number of delayed sales does not actually assess whether those sales pose a public safety threat. The fact that the loophole was exploited by the Charleston gunman -- and according to FBI data by more than 30,000 prohibited individuals over the last decade -- suggests that “default proceed” sales do pose a danger to the public.
According to FBI data, more than 20 percent of “default proceed” sales where a final determination is made by the FBI involve sales of firearms to prohibited individuals. An analysis of this data by Mayors Against Illegal Guns found “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.”
The NRA attempted a second tactic to attack Clyburn and protect the “default proceed” loophole it helped create by falsely claiming that Roof may have been a legal firearm purchaser. The NRA suggests that Roof may not have been prohibited by citing conflicting media reports regarding whether at the time of the gun purchase Roof had a pending misdemeanor or felony drug charge:
None of this matters to Rep. Clyburn, of course, who is hoping the recent tragedy in South Carolina will give his legislation the momentum it needs to succeed. Clyburn claimed in his press release announcing the bill that "[u]nder current law, the Charleston shooter should have been barred from purchasing a firearm from a licensed dealer." That assertion is by no means clear, with media outlets now reporting that the suspect was arrested for a misdemeanor, not a felony, as originally reported. A single misdemeanor arrest, without more, is not cause for a denial under federal law (on the other hand, if the suspect had been formally charged with a felony, he would have been federally prohibited from buying a gun).
Under federal law, individuals under indictment for felonies are prohibited from buying firearms and should be flagged by the background check system. The NRA's citation of this fact, however, is a red herring because Roof was actually prohibited from owning a gun under a different provision of federal law.
According to the head of the FBI, police documents indicated that Roof had admitted to possession of a controlled substance. Under longstanding federal law, someone who “is an unlawful user of or addicted to any controlled substance” (as defined by the Controlled Substances Act) is prohibited from buying a firearm. But because an investigator wasn't able to locate this record within three business days, Roof was able to buy a gun anyways.