The background check system for gun purchases is a mess. Republicans have criticized Democratic presidents for failing to prosecute people denied gun purchases through background checks. Democrats have leveled the same criticism at Republican presidents. But both sides miss the real problem. The system generates mistaken denials – “false positives” – by confusing felons with non-felons, so the denials aren’t real cases. And those errors disproportionately affect black and Hispanic males.
This week, the House will vote on Congressman Thomas Massie’s NICS Data Reporting Act. The House Judiciary Committee passed the bill unanimously. The legislation would require the Department of Justice to collect data on errors in the background check system.
In the latest year available, the National Instant Criminal Background Check System denied 116,587 gun purchases in 2023, but returned only 14 indictments and just five convictions. These numbers are nothing new. In 2022, there were 131,865 denials, 18 indicted, and three convictions.
For example, in 2013, Sen. Jeff Sessions, before becoming attorney general, accused the Obama administration of failing to enforce existing gun laws against prohibited purchasers. After joining the first Trump administration as attorney general, Sessions pledged to “swiftly and aggressively prosecute” prohibited individuals who attempted to buy firearms illegally. While in office, he declared: “The National Instant Criminal Background Check System is critical for us to be able to keep guns out of the hands of those that are prohibited from owning them.” He even branded the effort as “Lie-and-Try” prosecutions.
But as I predicted at the time, Sessions’ efforts did not increase prosecutions. Gun-control groups such as the Giffords Law Center later complained that the Trump administration also failed to enforce the background check system.
These cases are also extremely easy to prosecute: The buyer signs a form swearing they are not prohibited from purchasing a gun, presents government-issued ID, and is almost always recorded on video while attempting the purchase. Forgetting a long prison sentence is not a credible defense.
Sessions failed because these were not legitimate cases. Prosecutors can charge a felon who is legally barred from buying a gun, but they cannot realistically prosecute someone simply because he shares a phonetically similar name and a similar birth date with a felon.
The people most impacted by the false positives are poor minorities, since people tend to have names similar to others in their racial groups. Because a high proportion of black and Hispanic males are prohibited from owning guns, law-abiding minority males face the highest rate of background-check mistakes.
About 33% of black males and 18% of Hispanic males have felony records, compared with only about 12% of American men overall. Given those differences, it is not surprising that the system’s mistakes disproportionately affect black and Hispanic males.
Many of those people are trying to buy guns to protect themselves. “This incredibly high rate of false positives imposes a real burden on the most vulnerable people,” said Reagan Dunn, the first national coordinator for Project Safe Neighborhoods, a Justice Department program started in 2001 to ensure gun laws are enforced.
People who are denied can file an appeal, but most must hire a lawyer to do so. Legal fees are expensive, typically starting at around $3,000. Many who start the process drop it after they see how costly it is. Many people may want a gun for protection, yet even middle-income individuals may decide that the cost of an appeal exceeds the value they place on owning a gun.
Fortunately, there’s an easy fix. The government should be required to use all of the information that it collects when gun buyers fill out the form to buy a gun (e.g., exact names, Social Security numbers, and addresses). If private companies constantly confused innocent people with criminals when doing background checks on employees, lawsuits would drive them out of business.
Many Democrats don’t want to fix this because it would eliminate their big talking point about 5.1 million dangerous or prohibited people having been stopped from buying guns since the instant background check system went into effect in 1998. Many Republicans have also invested a lot in attacking Obama and the Democrats for not enforcing gun control laws and prosecuting more prohibited purchasers.
Fortunately, Massie’s bill that Congress looks set to pass this week will help make these problems clear and them hopefully lead to changes that will actually fix the system.
Everyone wants to stop dangerous people from buying guns. But let’s fix the system so it stops those who are at risk of causing harm, not law-abiding citizens who want to protect themselves and their families.
