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Saturday, March 17, 2018

Reprinted with permission from MediaMatters.

The National Rifle Association’s (NRA) leadership has broken its silence following last week’s mass shooting at Marjory Stoneman Douglas High School. Comments made by its leadership at CNN’s February 21 town hall on gun violence and during speeches at CPAC indicate that the NRA is coalescing around a misleading talking point that attacks the national background check system for gun purchases.

Three different times during a 24 hour period, NRA leadership bemoaned that states are not required to submit disqualifying records into the background check system:

  • At CNN’s town hall, NRA national spokesperson Dana Loesch said, “We had three lawmakers on this stage and only one of them hinted at reinforcing the background check system. It is only as good as the records submitted to it. Only one of them even got anywhere close to mentioning that. We have to have more than 38 states submit records.” Loesch also asked Stoneman Douglas student Emma Gonzalez, “Do you know that it is not federally required for states to actually report people who are prohibited possessors, crazy people, people who are murderers?”
  • Loesch used the talking point again during her February 22 speech at CPAC, saying, “I want you to all ask yourselves, where are the stories about how only 38 states submit less than 80 percent of criminal convictions to the background checks system. It’s only as good as what’s submitted to it. How many of you knew that? No. Why isn’t [Sen.] Dianne Feinstein [D-CA] calling for that? I have to question whether or not they want this system to fail.”
  • NRA CEO LaPierre hit the same point to attack the press during his speech, saying, “No one gets ratings by telling the truth about how to stop mass killers. So they don’t report that 38 states submit less than 80 percent of their felony convictions to the system, leaving more than 7 million felony convictions in the dark.”

There’s one major problem with this talking point: The NRA’s actions are the reason states can’t be required to submit disqualifying records into the National Instant Criminal Background Check System (NICS).

During the 1990s, the NRA backed a lawsuit Printz v. United States that sought to block the implementation of NICS, which was created by the 1993 Brady Bill.

While the system eventually went into effect, the outcome of Printz damaged its effectiveness, as the Supreme Court ruled in a 5-4 decision in favor of the NRA’s argument that requiring states to perform background checks for a federal system violated the 10th Amendment.

The ruling also had implications on whether states can be required to submit disqualifying records into the background check system. As the Giffords Law Center to Prevent Gun Violence explains, “Federal law cannot require states to make information identifying people ineligible to possess firearms available to the federal or state agencies that perform background checks” because “case law suggests that a federal statute requiring states to disclose records to the FBI would violate the Tenth Amendment” due to the Printz ruling.

As a result of this state of affairs, all Congress can do is encourage states to submit records using a carrot-and-stick system that provides incentives and disincentives for states to submit records.

In Loesch’s CPAC comments, she asked “Why isn’t Dianne Feinstein calling for” more records to be put in the system. In fact, Feinstein is the co-sponsor of bipartisan legislation introduced by Sen. John Cornyn (R-TX) and Sen. Chris Murphy (D-CT) that would further incentivize states to provide records into the system.

LaPierre revived the NRA’s past claim today at CPAC that the NRA should be credited for the creation of NICS. But the reality is that when the law was being considered as legislation, the group tried to stymie it at every turn, and once it was enacted attempted to sue it out of existence.