A majority of Americans support background checks, but the process has been criticized by many. Background checks: Do they work?

The federal background check system for gun buyers is porous, ineffective, and hampered by a lack of cooperation from the states.

And that’s what the system’s supporters have to say.


(Also on POLITICO: W.H. gun push narrows to background checks)

For critics, it’s much more than that. They warn that even if the system can be perfected — and there’s growing consensus in Washington, D.C., that the time has come to authorize certain basic and largely non-controversial improvements — it will do nothing to reduce gun violence.

President Barack Obama called on Congress to implement universal background checks as part of the gun-control proposals he unveiled in the wake of the Dec. 14 shooting at Sandy Hook Elementary School in Newtown, Conn., where 20 children and six others were killed.

“It’s time for Congress to require a universal background check for anyone trying to buy a gun,” Obama said. “If you want to buy a gun — whether it’s from a licensed dealer or a private seller — you should at least have to show you are not a felon or somebody legally prohibited from buying one. This is common sense.”

Recent polling indicates that nearly everybody agrees — a CBS/New York Times poll put support for universal background checks at 92 percent, including 85 percent among those living in a household with an National Rifle Association member. Even Sen. Joe Manchin (D-W.V.), a hunter and gun rights advocate who has an “A” rating from the NRA, said on Thursday that he was working with lawmakers — and the NRA — on a bill to update and improve the check system.

“I’m working on a bill right now with other senators — Democrats and Republicans — we’re trying to get it, and looking at a background check that basically says that if you’re going to be a gun owner, you should be able to pass a background check to be able to get that, with exceptions,” Manchin told the MetroNews station in West Virginia. “I’m working with the NRA, to be honest with you, and talking to them.”

The effort to repair the system stems from widespread agreement that it’s rendered nearly useless because of two key problems: A giant-sized loophole exists in that some private sellers aren’t required to do checks; and many states aren’t providing the feds with the vital needed information to maintain a meaningful database of those who, legally, have no right to purchase firearms. In particular, this pertains to mental health problems and drug use.

“Most Americans support background checks, but they … have very little clue about what that means,” said David Kopel, a gun law expert and adjunct Constitutional law professor at the University of Denver. “When you phrase something in an attractive way like ‘universal background checks,’ who wouldn’t be for it? But if you get into the details, there’s a bit more grey-area.”

The FBI denied 72,659 attempted gun buys in 2010, based on red flags raised by the background check system, according to the most recent data available from the Department of Justice. That’s just 1.2 percent of the more than 6 million applications. The most common reasons: nearly half were felony indictment or conviction; 19 percent were fugitives; and 11 percent were those who had violated state laws. The rejection rate has been essentially unchanged over the years. (There is a right to appeal.)

Here’s how the system is supposed to work: Before buying a gun from a federally licensed dealer, you are required to fill out a federal form with basic questions about criminal history. The seller calls the information into the FBI’s National Instant Criminal Background Check System (NICS), in Clarksburg, W. Va., and on the spot your name is run through the database. In a matter of minutes, you can complete your purchase if no red flags pop up.

So who can’t get a gun? The federal law instituting instant background checks was activated in 1998 and bars convicted killers from being able to buy firearms, as well as anyone imprisoned for more than two years; those convicted of domestic abuse; fugitives from justice, illegal immigrants; soldiers who have been dishonorably discharged; and people who are under indictment for a crime punishable by more than a year behind bars.

While the system is well-intentioned, many argue it’s just not working and they’ve got plenty of evidence to point to.

For instance, while the background checks cover mental illness, few states are submitting the required records to the federal database. From 2004 and 2011, the number of mental health records made available to NICS increased dramatically from 126,000 to 1.2 million, according to a July report from the Government Accountability Office (GAO). But the GAO noted that the increase is largely a result of efforts by only 12 states.

Under the current restrictions regarding mental health issues, gun purchases are prohibited for anyone found not guilty of a crime by reason of insanity, anyone who has been involuntarily committed to a mental institution, or found legally incompetent to handle their own affairs.

Like mental health records, drug violations are also under-reported to the feds, according to reports. The GAO concluded that “most states” aren’t informing the feds of failed drug tests, as the federal background check law requires — with 30 states not making any noncriminal data available.

With regards to drugs, the law bars anyone with multiple arrests for the use or possession of a controlled substance within the past five years with the most recent arrest happening in the last year. It also restricts someone who is convicted for the use or possession of a controlled substance within the last year.

That includes marijuana. And with Colorado and Washington becoming the first two states to legalize recreational marijuana — and others already legalizing medicinal marijuana — those new state laws are bumping up against the federal background checks, experts say.

“The system is now running into serious issues since states have legalized medicinal and recreational marijuana,” said Kopel. “Not to mention, if a guy sells some marijuana to his buddies, is it really worth him losing a Constitutional right?”

So why aren’t many states providing the records to the feds that are required for background checks? Some say it’s because they’re strapped for cash, but others say it’s an absence of political will.

“It’s a lack of leadership and political will. Legislatures certainly haven’t been paying attention to this issue and haven’t made a stand,” said Lindsay Nichols, an attorney with the Law Center to Prevent Gun Violence. “Money — for the large part that’s just an excuse.”

To try to deal with this issue, Obama pledged $20 million in grants for states to provide additional records. And lawmakers, including Gov. Bob McDonnell (R-Va.), have called for more cooperation from the states. Following the 2007 Virginia Tech shooting, McDonnell urged states to provide more mental health records to the FBI in an effort to prevent crime. The shooter Seung-Hui Cho, was mentally ill.

But perhaps the most widely acknowledged problem is the so-called gun-show loophole.

Currently, only federally licensed gun dealers are required to run federal background checks. That means that someone can sell a gun to a friend — or even to a person they’ve just met on the street — without a background check. Obama wants to close this loophole, hence making background checks “universal,” or applying to all purchases.

“The ‘private sale’ loophole is the gaping hole in our federal gun laws which allows anyone who is not a federally licensed gun dealer to sell a gun without a background check — no questions asked,” said Jonathan E. Lowy, legal action director of The Brady Campaign.

It’s also referred to as the gun-show loophole, because it can allow collectors to sell each other guns during gun shows, said John Lott, the former chief economist of the U.S. Sentencing Commission. Some states have already passed laws to include running background checks on privatized gun sales, but there’s no federal law.

“That loophole severely reduces the effectiveness of the system,” Nichols said.

Even beyond the gun show loophole, questions about the effectiveness of the checks still linger. Researchers in 2000 reviewed more than a decade of crime data in states with and without background checks. They found no significant difference in murder rates in states that had implemented the checks and states that had not, according to the study, which was published in The Journal of the American Medical Association.

Meanwhile, Lott said that preventing gun trafficking, gangs and drug use might be more effective ways to cut down on gun violence.

“There are a lot more things that you could spend money on that could be more cost-effective and get to the root of the problem,” Lott said. “Background checks might not really do anything, but if it’s going to make people feel better — a placebo effect — I guess it’s worth it.”