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Josh Sugarmann

Josh Sugarmann

Posted: December 20, 2007 04:22 PM

Trojan Horse Gun Control: The NRA Wins on the NICS Bill


Last night Congress passed the "NICS Improvement Act," a bill that in prior incarnations was designed to improve the records available to the National Instant Criminal Background Check System (NICS)--the national system used to screen gun buyers.

Much has been made of the bill's bi-partisan, triangulating support: Democrats! Republicans! The National Rifle Association! The Brady Campaign! Beyond this cheery bon temps, little public attention has been paid to what the bill actually does beyond its title. And that's because if you start looking at the details of the bill--especially after NRA-backed changes made by Oklahoma Senator Tom Coburn--it becomes clear that the measure is nothing less than a pro-gun Trojan Horse. That's why my organization, the Violence Policy Center, and other national gun control groups, have voiced their strong concerns about the version of the bill that was passed by Congress. Concerns that have been validated by none other than the NRA which, after the bill's passage issued a press release which crowed:

"After months of careful negotiation, pro-gun legislation was passed through Congress today. The National Rifle Association (NRA) worked closely with Senator Tom Coburn (R-Okla.) to address his concerns regarding H.R. 2640, the National Instant Check System (NICS) Improvement Act. These changes make a good bill even better. The end product is a win for American gun owners. Late yesterday, anti-gun Senator Ted Kennedy (D-MA), failed to delay progress of this pro-gun measure. The Violence Policy Center, the Coalition to Stop Gun Violence and other gun control and gun ban groups are opposed to the passage of this legislation because of the many pro-gun improvements contained within."

So why's the NRA so in thrall with an alleged gun control bill? Here are some of the reasons why.

The bill would resuscitate a failed government program that spent millions of dollars annually to allow persons prohibited from buying guns to regain the ability to legally acquire firearms. The Department of Veterans Affairs (VA) would be required to establish a "relief from disability" program to allow persons now prohibited from possessing a firearm because they have "been adjudicated as a mental defective" or "committed to a mental institution" to apply to have their bar on firearms possession removed. As a result of the bill, more than 116,000 individuals would be eligible to apply. States would also be required to establish such "relief" programs to restore the gun privileges of those with mental health disabilities in order to be eligible for potential grant money to upgrade records submitted to the NICS.

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) used to run a similar program that, in addition to those with mental disabilities, even allowed felons to apply for "relief." Annual costs for the ATF program ballooned to more than $4 million in 1991, with an average cost of $4,800 per applicant and 43 full-time employees dedicated to processing the applications. Congress shut down the ATF program in 1992 because of its high cost, inefficiency, and threat to public safety (among those re-armed with your tax dollars: kidnappers, rapists, and terrorists).

The bill also sets an arbitrary time limit for the VA to act on applications for "relief." If the agency fails to act within 365 days, applicants can file a lawsuit asking a court to restore their gun privileges--even if Congress fails to provide the VA with the appropriate resources to process these investigations. Some prevailing applicants would be entitled to attorneys' fees.

This provision is contrary to a unanimous 2002 U.S. Supreme Court ruling that ATF's failure to act on a relief application from a felon (because of a lack of appropriations) did not constitute a denial that would entitle the applicant to judicial review. The decision noted that courts are ill-equipped to make decisions on individual applications for "relief" under the standards that would apply under the "NICS Improvement Act," stating: "Whether an applicant is `likely to act in a manner dangerous to public safety' presupposes an inquiry into that applicant's background--a function best performed by the Executive, which, unlike courts, is institutionally equipped for conducting a neutral, wide-ranging investigation. Similarly, the `public interest' standard calls for an inherently policy-based decision best left in the hands of an agency."

The bill significantly narrows the category of records of people with mental disabilities that would be submitted to the NICS by the federal government. The current permanent bar on persons with certain mental health disabilities would be replaced with temporary restrictions.

Once a solution, the bill--hijacked by the gun lobby--is now part of the problem. Intended as Congress' response to the mass shooting at Virginia Tech by focusing on improving the current laws prohibiting people with certain mental health disabilities from buying guns, the bill is now nothing more than a gun lobby wish list. It will waste millions of taxpayer dollars restoring the gun privileges of persons previously determined to present a danger to themselves or others.

Yes, the bill does authorize $200 million dollars a year for five years to improve the submission of mental health records to the NICS (even the Brady law, authorized at the same level, has never come anywhere near such a level of actual funding). But does anyone really believe that the NRA is going to lobby the appropriations committees to fully fund the measure? They'll be spending their time ensuring that there's just enough money to fund the components of the bill they really care about--like the federal and state "relief from disability" programs--and that no one else seems to want to talk about. The bottom line: the known "bad" in this bill far outweighs the hoped-for "good."

The concerns over these aspects of the bill are not abstract. According to research published earlier this year, male U.S. veterans are twice as likely to commit suicide as men with no military service and are more likely to kill themselves with a gun than others who commit suicide. The men with a military background were 58 percent more likely to have used a firearm to kill themselves than non-veterans who committed suicide. Add to this the fact that veterans are more likely to own guns than the general population.

Veterans with mental health problems may present special risks for gun violence. In 2000, the New York Times examined 100 rampage shootings and found that the majority (52 percent) of such killers had been in the military. The Times' review also found that 47 percent of rampage killers had a history of mental problems, with 42 percent having been seen by mental health professionals.

When the inevitable tragedies occur as a result of this bill, and veterans with mental health disabilities--given guns instead of help--turn these weapons on themselves, their families, or the public, the inevitable question will be, "How did this happen?" When that question is asked, who will be willing to answer it?