Now that President Barack Obama’s tears have been wiped away and the angry tweets have flown from opponents, both sides of the gun policy debate are unpacking the White House’s suite of executive actions. In coming days, pundits will continue to measure the rule clarifications and budget requests with wonk-ish yardsticks and gauge them for constitutionality. The most intense focus will fall on the White House’s long-hyped directives surrounding prosecutions of people illegally engaged in the business of selling guns, and to what extent that move closes loopholes in the background check system.
President Obama’s Executive Actions on Background Checks, Explained
As the assessments of some critics — the National Rifle Association included — show, the new executive actions can underwhelm at first glance. Obama did not issue formal orders redefining the law, as many expected he would. But within the package are a couple 0f below-the-fold measures that could have tangible impact, one by shoring up the infrastructure the federal government uses to vet prospective firearm purchasers, the other by conveying potentially life-saving information to local law enforcement.
Take the White House’s directive to the Federal Bureau of Investigation (FBI) to hire 230 investigators for its National Instant Criminal Background Check System (NICS), an increase of 50 percent. Frank Campbell, a former Department of Justice attorney who set up NICS in the 1990s and ran it for the rest of his government career, tells The Trace that the move reverses years of neglect, even under a White House ostensibly friendly to the department’s aims.
“People were asleep at the switch at the beginning of this administration,” Campbell says. From the time Obama entered office, “the volume of background checks doubled, but the size of the staff stayed the same.” He believes that bolstering NICS staff will be “absolutely meaningful” to ensuring the system’s performance.
As the number background checks processed annually rose from 12.7 million in 2008 to 23.7 million in 2015, the influx put NICS under enormous stress. The section had to borrow staff from other parts of the FBI just to deal with the demand. Other functions, like reviewing appeals of denied purchases, suffered, risking the resentment of buyers (and potentially sewing creeping resistance to future gun safety measures). Investigators were spread increasingly thin, and scrambled to find records on prospective gun buyers whose checks raised initial flags and demanded further research. The deficiencies were exposed last summer when a NICS staffer missed a disposition for a drug charge tied to Dylann Roof while he waited to purchase the handgun he used to murder nine parishioners in Charleston, South Carolina.
The Decade-Long Journey to an Emotional Day of Action for Obama and Gun Reform Advocates
Campbell’s criticism of the administration’s actions toward the nuts and bolts of gun violence prevention vaguely echoes the reaction many had to the troubled launch of Healthcare.gov, the public interface of the president’s Affordable Healthcare Act. Perhaps it’s fitting, then, that Obama has brought in the US Digital Service (USDS), the team that was convened to fix the health insurance platform, to optimize NICS.
The FBI has promised a serious upgrade of NICS’ backend since at least February 2014, but its launch has been repeatedly delayed. The USDS should speed that up. The all-purpose public services A-Team will work with the FBI to ensure the system is capable of completing all background checks, even troublesome ones like Roof’s, within three business days, after which sales are allowed to go through in what’s called a “default proceed.” As things stand now, the FBI asks the ATF to retrieve guns in approximately 3,000 such cases per year where it believes a delayed background check allowed dealers to transfer guns to people who should have been denied.
The upgrade to NICS will also improve investigators’ ability to notify local law enforcement when prohibited purchasers try to get their hands on a gun. While lying on a background check form is itself a crime, it’s rarely prosecuted; federal law enforcement usually only pursues these cases when they involve fugitives. Since NICS launched in 1998, more than 650,000 people have been turned down for gun purchases for having a criminal record, but a study by Syracuse University found that U.S. attorneys only pursue 100 to 200 cases per year with lying to acquire a gun as the lead charge.
Right now, notices of failed background checks usually don’t reach local law enforcement. If more police departments were notified about denied sales — as Obama is pushing for — they could use them as opportunities to intervene once informed that a felon or a domestic abuser is in the market for a deadly weapon.
Some states that augment NICS with their own instant background check systems already make a point of looking into those denied purchasers, with public safety benefits. When someone fails a check in Pennsylvania and the state police believe they’ve lied to obscure a criminal history, its firearms division notifies local authorities. Trooper Adam Reed, a spokesman for the State Police, says that in 2014, failed background checks in Pennsylvania resulted in 4,154 cases referred for further investigation, 782 arrests, and 367 convictions. Reed says these investigations are important because “it’s a way of ensuring people know they’re going to be held accountable” for trying to get ahold of guns illegally. A similar practice is in place in Virginia.
Obama’s new executive orders are incremental measures. They are far more modest than the sweeping reform pursued in the failed 2013 Manchin-Toomey background check bill (itself the product of much compromise), and no where near activists’ holy grail of gun safety measures, universal background checks. But executive priorities are important on their own. As documented extensively by Lawrence Wright in his book The Looming Tower, Islamic terrorism was largely an afterthought for President George W. Bush until September 11, 2001. After the attack on the World Trade Center, counterterrorism efforts became an overwhelming priority for the FBI and other law enforcement agencies: individual cases were part of a larger strategy of confronting a national crisis. Obama’s week of policy pronouncements and public statements communicate the message that gun violence is a similar crisis, and the White House is prodding institutions to set the foundation to more effectively address it over the long haul.
[Photo: AP Photo/Matt Stroud]