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National Rifle Association

The NRA Is Taking Credit For the Background Check System It Tried to Sink

The group did champion the point-of-sale system we have now — but only because it hoped that pushing an immature technology would lead to the Brady Bill’s demise.

In a video posted to the National Rifle Association’s (NRA) YouTube channel last Wednesday, the organization’s executive vice president and CEO Wayne LaPierre furiously rebuts the idea that the gun group does not support background checks. In the spirited appearance, LaPierre credits the NRA for the creation of the National Instant Criminal Background Check System, or NICS, which President Barack Obama is trying to expand to cover more currently unregulated private sales via executive action.

“The best kept secret is that the national instant check system wouldn’t exist at all if it weren’t for the NRA,” he proclaims.

The next night, during and after CNN’s town hall meeting on gun violence with President Obama, conservative commentators hammered the same talking point.

“We only have background checks because the NRA fought for them as opposed to a five-day waiting period,” said CNN panelist S.E. Cupp. “The NICS system exists because the NRA helped get it passed.”

Dana Loesch, a conservative talk radio host and gun-rights activist, demanded the president “stop claiming otherwise.”

But the assertion advanced by LaPierre and the NRA’s supporters mischaracterizes the group’s role in a six-year legislative battle that culminated in 1993 with the passage of the Brady Handgun Violence Prevention Act and the creation of NICS. While it’s true that the NRA pushed for an instant background check system, it did so as an obstructionist move. When the Brady Act was being hashed out in the late 1980s and early ’90s — with the Internet then still in its infancy — the NRA knew that imposing such a system was a herculean task sure to imperil any bill that included such a mandate.

Here’s how LaPierre’s claims stack up against the congressional record, media accounts, and his own past statements.

What LaPierre says: “Back in the ’90s, President Clinton forced passage of a mandatory waiting period on every handgun purchase in America. Not a background check — a wait.”

What the record says: The Brady Bill, even in early iterations, allotted a window of time (at first seven days, then five, then three) for law enforcement to vet the backgrounds of handgun buyers. It did not impose a mandatory waiting period — sometimes referred to as a “cooling off” period — before a buyer could receive their gun. If a purchaser was cleared before the time limit for their background check, the transaction could occur as soon as the all-clear was given. 

“The interim provisions of the Brady Act prohibited sale of a handgun by a FFL for 5 days ​or​ until the licensee had been advised that, based on a background check, a prospective purchaser was not prohibited from purchase under Federal or State law,” reads a 2000 Bureau of Justice Statistics report (emphasis ours).

LaPierre is purposely conflating a “waiting period” with an “investigation period,” something he and the NRA have done since the Brady Act’s inception. In the ’90s, the talking point was bolstered by media coverage that didn’t distinguish between the terms. (While nine states and the District of Columbia currently have a waiting period for handgun purchases, there is no federal equivalent.) But the two are not the same, something the gun group itself has emphasized: A 1999 article on the NRA-ILA’s website states that “the Brady Act was imposed not for a ‘cooling off period,’ but for a records check requirement as an obstacle to firearm purchases by felons, fugitives and other prohibited persons.”

What LaPierre says: “But NRA said as soon as the technology was available, the wait had to be replaced by an instant background check done by the dealer at the point of sale.”

What the record says: The group demanded that a federal point-of-sale screening system come online no more than five years after the Brady Bill passed — regardless of whether the technology was ready or not. In September 1993, during final deliberations over the Brady Bill, Richard Gardiner, the legislative counsel for the NRA’s lobbying arm, testified before a House Judiciary subcommittee. He urged lawmakers to pick a start date for NICS rather than leave it to the Attorney General’s discretion:

The proponents of H.R. 1025 have sought support for the bill by suggesting that it will eventually lead to the implementation of a national instant check when such a system is technologically feasible. As I have noted, the NRA applauds the admission that an instant point-of-sale screening system — which the NRA has been supporting since 1988 — is the preferred alternative. We believe, however, that the time for dithering on this issue is long past. We believe that a date for the implementation of a federal point-of-sale screening system should be set, by law, and adhered to.

What LaPierre says: “NRA supported it, NRA got the votes, NRA got it passed.”  

What the record says: The NRA opposed the legislation but concluded that defeating it would be virtually impossible because it enjoyed broad public support. The legislation was backed by none other than President Ronald Reagan, who nearly died in the assassination attempt that paralyzed — and eventually killed — his press secretary, Jim Brady, for whom the bill is named. So the gun group began floating killer amendments that “seemed to offer a meaningful reform yet posed no actual change in gun purchasing procedures for many years to come,” Robert Spitzer writes in The Politics of Gun Control.

The interim provisions of the Brady Act prohibited sale of a handgun by a FFL for 5 days ​or​ until the licensee had been advised that, based on a background check, a prospective purchaser was not prohibited from purchase under Federal or State law”

Bureau of Justice Statistics

2000 report

One NRA-sponsored House amendment put forward in 1991 called for an instant check system to be up and running within six months and would have given law enforcement only 24 hours to check a buyer’s background before triggering a “default proceed” sale. Despite heavy lobbying, it was defeated. Undaunted, the NRA went to the Senate and urged lawmakers to support a similar amendment, which also failed.

The final amendment designed to sink the bill — House Amendment 390, sponsored by Pennsylvania House Republican George Gekas — required that a computerized system, then referred to as InstaCheck, be installed within five years of Brady’s enactment and called for a 24-hour background investigation period. After further maneuvering in the Senate, the investigation period was lengthened to the three-day period we have now. 

Five days before the Brady Bill was signed, LaPierre, conflating the investigation period with a mandatory wait, decried the very system he is now claiming to have championed. “The waiting period is unfair to honest, law-abiding people. The criminals won’t wait,” he told the New York TimesAmerican Rifleman, an NRA magazine, went further, saying that when President Clinton signed the bill, “a drop of blood dripped from the finger of the sovereign American citizen.” And the NRA kept at it, filing a lawsuit that challenged the authority of sheriffs and police chiefs to perform background checks until the Federal Bureau of Investigation (FBI), which would maintain NICS, could assume the responsibility when the system came online, Media Matters reports:

The NRA challenged the constitutionality of the Brady law in a case that made it to the Supreme Court in 1997. The NRA’s primary argument was that the law was unconstitutional because it “commandeered” state governments by forcing them to carry out functions that the federal government cannot force them to do under the 10th Amendment. The NRA could have limited its argument to say that state authorities did not have to perform Brady background checks, essentially pausing the national background check system until 1998 when NICS would come online (states would still be free to run background checks under the Brady Bill, but the federal government couldn’t force them to do so). Instead, the NRA argued, “the whole Statute must be voided.” If this argument would have been successful, NICS would have never been implemented.

New NRA Lie: We Were Responsible For Creating The National Instant Criminal Background Check System

When NICS was finally up and running in 1998, the NRA again brought legal action designed to hobble the background check system. In a suit filed against the FBI, the group alleged that records identifying gun buyers “amounted to a de facto gun registry.” The suit was dismissed by a federal appeals court on July 11, 2000, and the Supreme Court declined to take the case. The next year, over FBI and law enforcement objections, the Department of Justice, led by Attorney General John Ashcroft, proposed a rule to require the destruction of purchase records within 24 hours, down from six months. (The FBI keeps the records of denied applicants indefinitely.) The policy took effect as part of the Tiahrt Amendments in 2004. As a result, according to the Law Center to Prevent Gun Violence, “ATF inspectors are no longer able to compare the information on file with the dealer to the information the dealer submitted to NICS,” depriving law enforcement of a tool to crack down on dirty dealers and spot traffickers. 

In the years since, the NRA has continued a campaign to undermine the background check system. Though it publicly applauded the the NICS Improvement Amendments Act of 2007, which authorized grants to help states to submit more mental health records records to the background check system, former Congressman James Moran told The Trace in July that the NRA pressed its allies in Congress to limit the funding as the appropriations committee put each year’s budget together. As a result, almost 90 percent of the $1.3 billion allotted to improve NICS has not been spent.

Meanwhile, background checks enjoy clear popularity in opinion surveys. A FiveThirtyEight analysis notes that a December Quinnipiac University poll, one of dozens to arrive at similar results, found that the policy is supported by at least 84 percent of respondents in every demographic, including gun owners, men, rural residents, and Republicans. Other polls have found that strong support for background checks extends directly to members of the NRA, which has incentive to promote itself as a gun safety organization. Perhaps that accounts for why LaPierre wants the NRA to get credit for the creation of the background check system, even as his group has fought against its expansion.

[Photo: Youtube screenshot]