Senators have introduced a new bill to shore up America's background check system, and it might pass. But it ignores some pretty glaring loopholes.
People scramble for shelter at the Route 91 Harvest country music festival after gunfire was heard on October 1, 2017 in Las Vegas, Nevada. (Photo by David Becker/Getty Images
Less than two weeks after a convicted wife-beater walked into a church and killed 26 people with a gun he never should have been able to buy in the first place, Republican members of Congress did something rare. Rather than merely offering thoughts and prayers, some of them vowed to dream up a way to pass a law that might help prevent another disaster.
On Thursday, Senator John Cornyn—a deeply conservative Texas Republican—unveiled what he and his Democratic colleague from Connecticut, Chris Murphy, among others, came up with. As CBS News reported, their bill that would incentivize states to add more data to the National Instant Criminal Background Check System (NICS), and penalize federal agencies that fail to do so. The obscene frequency of mass death perpetrated via gunfire in this country followed by inaction in Washington makes the tangible prospect of a bipartisan gun regulation notable in and of itself. It's even more so when a Republican co-sponsor, Cornyn, has an A+ rating from the National Rifle Association.
Still—is this something that a person invested in reducing the number of mass shootings in America should get excited about? I called up Adam Winkler, an expert on guns and constitutional law at UCLA, to see if we'd hit a watershed moment in the world of gun control, and if nudging states and federal agencies for better reporting on people who shouldn't have guns might be a way to keep them out of the hands of would-be mass shooters. Here's what we talked about.
VICE: It's hard not to be cynical about something like this because it seems like the loophole these guys are trying to close is so small—plenty of dangerous Americans don't have felony convictions, for instance. What does it seem likely to produce in terms of preventing either reporting disasters or mass shootings more generally?
Adam Winkler: Well, it's fair criticism that this bill does not go very far. It is a small bill seeking to shore up what is a weak background check system, and it is not designed to close the major loopholes that allow people to buy guns lawfully without going through a background check. It doesn't close the so-called "gun show loophole" [where you can buy a gun at special events without a waiting period].
Shoring up the existing system is good thing. We want more data in that system. But there's no reason for the database not to have information about felons from around the country.
What happens currently? I'm assuming theres a financial penalty for failure to report?
The federal government doesn't have authority under the constitution to require states to provide this information. When the first background check law was adopted, it required local sheriffs to run these background checks. Some local sheriffs sued, and the Supreme Court ruled in favor of them, saying that Congress doesn't have the power to order state officials to do something. That's why we have sanctuary cities. The government can't mandate that Los Angeles arrest people, though the federal government has the freedom to come in and arrest people themselves.
Right, so they have to provide incentives. Is that the first time that's been on the table?
They're hoping to offer a carrot to states to provide better information. It's not the first time this has happened. After the Virginia Tech Massacre, they passed a law creating some new incentives to try and encourage states to provide mental health data. But the database is still lacking. Apparently it's still [not enough.]
Based on what we know so far, what is the best possible scenario for what a final law here eventually contains?
What they should do and what they won't is to make background checks universal and require every sale to go through a background check. The fact that I can go to a gun show and buy a gun or go to CraigsList and buy a gun without a background check—the fix can only do so much.
Also, the bill would incentivize states, but the Texas shooter got a gun after a reporting error by the Air Force, not from the state of Texas. Would this legislation even prevent this exact same scenario from playing out again?
They don't need to incentivize the Air Force, because it's a federal agency. They can just order them. I think what they'll do is order the Air Force to provide better and more clear data. One thing it might involve is possibly some proposals to re-write some military rules that categorize what kinds of offenses are the subject of a discharge. Right now my understanding is that there's not really a domestic violence offense [rule], just an assault offense [rule]. So having a more clear system for identifying domestic violence incidents so that the data can be more easily compiled and reported to the background check system.
At the very least, how big of a deal is it that this is bipartisan and being co-sponsored by someone with an A+ rating from the NRA? Have there been other bipartisan efforts at gun control in the past?
Let's face it, you can't get any law passed through this Congress, on any issue. And when it comes to guns, you can't expect any major, effective reforms to be passed by them. If they can get a small fix for a flawed system, that's better than nothing. It moves the ball. And in this Congress that's probably a lot more than you could reasonably ask for.
Follow Allie Conti on Twitter.