Gun Law Loopholes

The two gun bills that Clinton signed those first years of his presidency were indeed significant. In order to make it through Congress, however, both were engineered with serious flaws built into them.

Since [NICS's] inception in 1998, nearly two million gun sales to potential buyers in the prohibited classes have been stopped by instant checks.

The main impact of the Brady Law was to add teeth to the 1968 Act by requiring that someone actually check to see if a gun buyer falls into a prohibited class. As the Brady Campaign organization now puts it, this was intended to eliminate the “lie-and-buy” practice that allowed criminals and other prohibited classes to get guns. In 1993, the law required a five-day waiting period for gun buyers, in part to allow time for the background check. But that was in the days when online technology was still in its infancy. The provision for a waiting period expired after 1998, when a new National Instant Check System (NICS) run by the FBI came online, allowing for immediate access to a database listing those prohibited from buying guns. (Some states have opted to run their own system, but the FBI maintains the centralized database.)

The Instant Check System got off to a bumpy start, but over time its performance has improved immensely. Now, when a buyer purchases a gun from a federally licensed gun dealer, the seller uses the phone or the Internet to connect to NICS for the background check. More than 90 percent of such checks are completed within five minutes, and most are even quicker. Both licensed gun dealers and law-abiding gun owners generally like the system, which is reliable and very close to “instant.”



In addition to performing reliably and quickly, NICS is achieving much—though not all—of its purpose. Since its inception in 1998, nearly two million gun sales to potential buyers in the prohibited classes have been stopped by instant checks. But 15 years into its effort to compile the necessary information, the data in the Instant Check System vary from excellent to terrible, with the result that not every prohibited class of buyers is equally well monitored.

NICS does a great job tracking felons, most of whom are in the system and effectively stopped from making gun purchases when the checks are run. The information on domestic abusers, provided mainly by the states, is good, though there remain some problems within that category that the states are working to address.

The massacre of 32 people at Virginia Tech might well have been avoided if Seung-Hui Cho had been in the database, as he should have been.

A major and continuing source of trouble for NICS is the mental health category. For every 10,000 background checks run, only five would-be buyers are denied on grounds of mental health. This country just isn’t that sane. Poor communications and unfounded concerns about patient privacy have meant that too few of the necessary mental health records have made it into the database—sometimes with tragic results. The massacre of 32 people at Virginia Tech might well have been avoided if Seung-Hui Cho had been in the database, as he should have been.



Still, the data problem is being addressed, if slowly. Congress has provided incentives, and states are getting their acts together. Some states are now sending hundreds of thousands of previously unavailable mental health records to the database; others continue to lag far behind. Oklahoma, for example, has just three names in the mental health category of the database. The much bigger problem has nothing to do with the database, however, but with the intrinsic design of the Brady Act—the loopholes in the law that allow criminals to get guns.

While the 1968 Act applies to everyone, the Brady Act does not. Only those buying their guns from a licensed dealer must submit to a background check. Now, there are a lot of licensed dealers out there—59,000 at last count, which is almost five times the number of McDonalds franchises in America. But many buyers get their guns from unlicensed sellers, mostly at gun shows or through ads on the Internet. No one knows how many unlicensed sellers there are; their ranks vary from a guy selling off his dad’s hunting rifle to the illegal gun trafficker moving hundreds of weapons per month through online sales.

These are basically mega-malls for criminals, who can generally find all the guns they want from sellers who aren't picky about their customers.

Hard as they are to count, most of them are easy to find. For example, anyone who attends a gun show in one of the 33 states that haven’t fixed this loophole by requiring that background checks be performed by all sellers at such shows will have no trouble spotting the tables with signs that say “no questions asked.” The licensed dealers at these shows—and there are about a hundred such events every weekend, many of them involving thousands of vendors—are running background checks on their buyers; the so-called “private sellers” at the next table over are not. So if you were a felon or a domestic abuser, where would you go to buy your gun? These are basically mega-malls for criminals, who can generally find all the guns they want from sellers who aren’t picky about their customers.

"You can go down to a gun show at the local convention center and come away with a fully automatic assault rifle, without a background check, and most likely without having to show an identification card. So what are you waiting for?"

-Adam Gadahn

Then there is the Internet, with sites like armslist.com. The New York Times recently took a look at that site and found about 170,000 guns for sale during their three-month investigation. Ninety-four percent of the ads were posted by private sellers, meaning that it’s easy pickings for prohibited buyers who do their shopping online. The Times didn’t have to look far to find felons and domestic abusers both buying and selling guns. As long as they are buying from someone in the same state, there is no need to involve a dealer and no background check is required.

The gun show and Internet loopholes are obvious not only to garden-variety criminals. In 2001 federal authorities convicted Hezbollah agent Ali Boumelhem for buying assault weapons at a Michigan gun show and attempting to ship them to his compatriots in Lebanon. Even al-Qaida has taken notice. In 2011, the group posted a video by American-born spokesman Adam Gadahn noting how easy it is to buy guns without background checks in the U.S. “You can go down to a gun show at the local convention center and come away with a fully automatic assault rifle, without a background check, and most likely without having to show an identification card,” Gadahn remarks. “So what are you waiting for?”