Paper Tiger?

Will the Brady Law Work After Instant Check?

Other Controversies About the Brady Law Transition

Again, a comprehensive examination of these issues is beyond the scope of this paper, but a brief overview demonstrates that we can expect complex and emotional debate about the Brady Law leading up to November 30 and beyond.

The Waiting Period

Under current law, typical handgun purchasers wait up to five business days before they can take their weapons home (contrary to widespread belief, there is no mandatory waiting period under the old Brady Law). Under the new Brady procedures, most gun buyers will not need to wait at all, and no purchase decision will be delayed more than three days. There has been objection to this change among many gun control advocates in Congress and elsewhere.

Legislation introduced in the 105th Congress by Senators Frank Lautenberg (D-NJ) and Richard Durbin (D-IL) and Representative Charles Schumer (D-NY) [S. 2324 and H.R. 4233] would have imposed a minimum three-day waiting period for all purchasers. The bills would also have required notice of the pending sale to local law enforcement officials, who would then have been given an opportunity to check their records and block a sale. These bills died when Congress adjourned in October, but might be reintroduced when the 106th Congress convenes in January 1999.

In brief, the two arguments for having a waiting period are:

• A Better Check�The complexities and drawbacks of the architecture outlined previously demonstrate that, in many cases, an adequate background check cannot be conducted "instantly." A wait of several days allows the authorities to scrutinize gun purchasers' records more carefully, and gives local law enforcement officials the opportunity to supplement the Instant Check with an examination of locally maintained records that are not connected to databases.

• The "Cooling Off Period"�A minimum waiting period for all purchasers may help to stop some suicides and "crimes of passion" by preventing impulse purchases of firearms.

The creation and operation of the Instant Check system is very expensive. The FBI projects that 11.4 million background checks will be conducted annually, with the FBI performing an estimated 4.9 million checks directly and states completing the remainder. The FBI also projects that it will need a staff of more than 500 just to research the cases flagged by Instant Check as "delayed." The Justice Department estimated in August 1998 that the cost of the NICS for fiscal year 1999 would be $91.6 million.

The Justice Department proposed charging gun dealers a fee of between $13 and $16 for each background check conducted by the FBI. In states with POCs, the states would determine whether to charge a fee and how much to charge.

Not surprisingly, the National Rifle Association and other members of the gun lobby objected vociferously to this fee. The NRA characterized it as a "gun tax" which would be passed along to individual firearm purchasers, and launched a large-scale "No Gun Tax" effort, ranging from Congressional testimony to distributing campaign-style pins emblazoned with the words "GUN TAX" covered by a red circle and slash.

This public campaign was accompanied by legislation. In July, the Senate passed an amendment to the Justice Department's appropriations measure, offered by Sen. Bob Smith (R-NH), which would block the Justice Department from charging the fee.

Opponents of these efforts note that the fee is extremely similar to charges for a wide range of government services, including everything from drivers' licenses to marriage licenses to�ironically�hunting licenses. In addition, the Violence Policy Center has pointed out that the gun industry benefits handsomely from the Pittman-Robertson Act, which reserves much of the proceeds of federal excise taxes on firearms and ammunition for hunting and shooting programs.

At the end of the Congressional session, Republicans inserted a prohibition on collection of the user fee by the federal government into the Fiscal Year 1999 omnibus spending bill. Instead, the bill provided $42 million for the operation of the system�including $22 million in new direct appropriations and $20 million drawn from the Justice Department's Working Capital Fund. Of course, this appropriation funds far less than half of the estimated $91.6 million pricetag for NICS.

Because the section of this legislation covering the Justice Department expires in June 1999�earlier than other appropriations�the funding issue may be revisited during the first half of 1999.

Record-Keeping Connected with Instant Check

Another aspect of the FBI's proposed implementation of the Instant Check system which drew the ire of the gun lobby was a proposal for keeping records of an Instant Check after it has been completed.

The FBI's proposed regulations would have created an "audit log" of Instant Check transactions, holding the record of each individual inquiry for up to 18 months. The FBI argued that maintaining these records is necessary to audit the Instant Check system and evaluate whether it is functioning effectively, efficiently, and fairly.

Any kind of record-keeping about gun purchases has long been totally anathema to the gun lobby. Indeed, this article of faith has driven the NRA's constant and successful opposition to the computerization of firearm purchase records�greatly hindering the tracing of criminals' guns by the Bureau of Alcohol, Tobacco, and Firearms.

In addition to blocking the user fee, the version of the Smith Amendment passed by the Senate would have prohibited the FBI from keeping any such records. The final language that was included in the Fiscal Year 1999 omnibus spending bill prohibits federal funding for any background check system that "does not require and result in the destruction of any identifying information submitted by or on behalf of any person who has been determined not to be prohibited from owning a firearm."

In response to this provision and numerous comments opposing the 18-month audit period, the FBI's final rule allows retention of personal identifying information for six months. The FBI intends to further reduce this audit period to "the shortest practicable period of time less than six months that will allow basic security audits of the NICS."

It remains unclear whether this six-month limit will interfere with the FBI's ability to effectively evaluate Instant Check. If this period is found to be too short, or if the gun lobby's supporters place further restrictions on the FBI's ability to audit Instant Check, it could become a serious problem. Policymakers would have no way of judging how well the system works, or whether improvements are necessary. In addition, based on experience, it seems likely that the gun lobby would fill the information vacuum with anecdotes about Instant Check which buttress its own point of view, whether or not the anecdotes were representative or accurate.

Concealed Weapon Permits as an Instant Check Substitute

The Violence Policy Center strongly opposes a provision of Instant Check regulations issued by the Bureau of Alcohol, Tobacco, and Firearms. ATF has exempted from Instant Check gun buyers who hold a permit to carry concealed weapons under state law.

Research conducted by the VPC demonstrates that in many instances, states perform inadequate background checks on applicants for concealed-carry permits. The VPC has conducted three in-depth studies of concealed-carry permits in Texas and Florida, the two most populous states with concealed-carry laws. These analyses uncovered massive errors, including applicants with criminal records who were nonetheless granted permits. They also found permit holders who committed crimes, yet retained their permits for months or even years. [Follow these links to view License to Kill Key Findings and Concealing the Risk: Real-World Effects of Lax Concealed Weapons Laws.]

In addition, authorities in Philadelphia have determined that firearms traffickers supplying criminals in the area had used concealed-carry permits as a means to legally obtain guns.

Furthermore, many state laws granting concealed-carry licenses do not screen out all the categories of "prohibited persons" identified under federal law, so background checks would not be as comprehensive as those established under the Brady Law.

States where concealed-weapons permits would substitute for the background check include Florida, Texas, Pennsylvania, Virginia, and Georgia.

Go to next section, Conclusion

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