Senator Reid’s Gun Control Bill Helps Criminals Get Guns

Senate Majority Leader Harry Reid’s (D-NV) gun control bill helps criminals figure out where it is easier to buy guns.

Under Senator Reid’s legislation (S. 649), states must continue to submit criminal records to the federal government for the National Instant Criminal Background Check System (NICS). Firearms-selling businesses use the NICS to run background checks on firearms purchasers to help identify people with criminal records or certain kinds of mental health records who are prohibited from buying guns.

Federal law (18 U.S.C. 922(g) and (n)) generally prohibits the following people from receipt, possession, or shipping of firearms or ammunition: convicted felons, individuals under indictment for felonies, fugitives, drug addicts, persons who have been adjudicated “as a mental defective” or committed to a mental institution, aliens unlawfully in the U.S., aliens in the U.S. with nonimmigrant visas, people with dishonorable military discharges, adjudicated stalkers, and domestic violence misdemeanants.

Section 112 of the Reid bill punishes states that do not submit on time all of their criminal records for use in the NICS system, by allowing Attorney General Eric Holder to take away a percentage of the federal law enforcement grant the state receives under the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3755). The percentage withheld from states goes up, and the performance expectation for the states goes up, over a five-year period. If, at the end of five years, a state is not providing at least 90 percent of its criminal records, withholding 5 percent of the federal grant money from the state becomes mandatory.

Whether the mandatory reduction provision would survive scrutiny under the standards that limit federal conditions placed on states that accept federal funding set forth in the Supreme Court’s decisions in South Dakota v. Dole (1987) and NFIB v. Sebelius (2012) is an interesting question—the percentage withheld is relatively small, but the law enforcement grant funding withheld is not necessarily germane to the program to which the NICS performance improvement steps relate.

Independent of the legal question about spending conditions, the legislation takes one more step that is unwise. Section 112(b) of the Reid bill provides that: “Not later than 1 year after the date of enactment of this Act, and every year thereafter, the Attorney General shall publish, and make available on a publicly accessible website, a report that ranks the States by the ratio of the number of records submitted by each State under sections 102 and 103 of the NICS Improvement Amendments Act of 2007 (18 U.S.C. 922 note) to the estimated total number of available records of the State.”

In other words, the Attorney General must publish an annual list of states that are doing poorly in submitting their criminal records to the NICS. What a handy list for a criminal looking to buy a gun—he need only peruse the Attorney General’s list of states to know whether he has a good chance in his state of passing a background check so that he can buy a firearm in violation of federal law.

Attorney General Holder does not need new gun control legislation to tell him to do something stupid that helps criminals get guns, as the gun-walking scandal of Operation Fast and Furious shows.