Getting the Language Right : Background Checks and Balances

We have a national background check system.  The FBI is responsible for it.  It is a legal requirement for every Federal Firearms License holder (FFL - aka: "gun store") use it.


It's the National Instant Criminal Background Check System, but most people just call it NICS.


Here's the annual report for 2014.  I'm not sure the 2015 report is out yet.

https://www.fbi.gov/about-us/cjis/nics/reports/2014-operations-report

Here's how it works.

You go into a gun store to buy a gun.  You fill out a form called a 4473.

(https://www.atf.gov/file/61446/download)

If a gun store sells you a gun without making you fill out a 4473, they are committing a crime.


The FFL checks your valid photo ID, and puts in a request to NICS using the information you provided on the 4473.

Over the next few minutes-to-few-days, one of three things happens.

1) NICS responds with a "Yes" and the FFL is legally permitted to sell you the gun.

2) NICS responds with a "No" and the FFL is legally obligated to cancel the sale.

3) NICS responds with a "Wait" and the gun store owner waits up to 3 days for either "Yes" or "No".  After those three days are over, without a response from NICS, the FFL is legally permitted to sell you the gun, at their discretion.

In the first case, your record, as far as NICS knows, is totally clean.

This is what happened in the case of Seung-hui Cho.  Legally he should have been barred from purchasing weapons from an FFL dealer since he had been declared mentally ill and faced a commitment hearing in front of a Virginia district court.

NICS didn't know that, because Virginia law on mental illness reporting has a hole in it.  Virginia law only requires reporting due to an involuntary commitment, and he was instead ordered to undergo outpatient treatment at that hearing.  So NICS never received a notification, even though the federal law requires one.

https://en.wikipedia.org/wiki/Seung-Hui_Cho#Psychiatric_evaluation

In the second case, as far as NICS knows, there is something on your record--placed there as a result of a court-date of one kind or another--that bars you from owning a firearm.

In the event that is an error, you can appeal to have your NICS record corrected.  Which is good.  People who have common names often find flaws in their records when it comes to population-spanning databases.  A system of redress to reinstate access for people who deserve it is important to any just implementation of any law.

Note: it is illegal to lie on a 4473, but law enforcement does not commonly follow up on this crime, for a variety of reasons.  So what usually happens is the gun store says "we can't sell you this" and then the person just leaves the store, even if they knew they should be barred from owning a firearm and lied on the form hoping that NICS didn't have good records.  The gun store isn't really in a position to restrain them.  It's unfortunate and I'd like to see more resources put into catching these people.

( https://www.law.cornell.edu/cfr/text/28/25.10# )

In the third case, there is something about your record that NICS doesn't know and it takes them too long to find the answer, because there is a 3 day time-limit imposed by federal law (It's a clever check on federal power--it keeps the Federal government from manufacturing a useless de-facto waiting period or temporary ban by stalling all record releases for as long as they want).

The result is called a "default proceed" and it's how Dylann Roof picked up the Glock pistol he used in the Charleston shooting, despite having a confession on his record that should have barred him from purchase.  The record wasn't filed correctly, and the response to the request took too long to reach NICS.

It takes NICS an average 25 days to get back whatever additional information they need to complete the record.

So by the time NICS figures out that there is something on the books barring that purchaser from buying a firearm, it has probably already been purchased.   They then send a "Firearms Retrieval Referral" to the ATF who has to go try to collect the gun.

So what happens during a NICS check for one of the 100,000 people on the No-Fly list, or the 90,000 Americans on the "Terrorist Watch List"?  Nothing.

Those lists include many, many names erroneously.  There's no judicial oversight and no pressure to remove names, or even a reasonable system for protesting your placement there.

Hell, someone at the FBI could decide they don't like this essay and add my name and I would have no legal recourse to correct that.

So when someone on one of those lists tries to buy a gun, NICS checks if there is any reason to keep the person from purchasing a firearm.  And, because of the 5th amendment guaranteeing due process, for that reason to count--it must involve a court of law at some point.

No reason?  You get a "Yes" and can buy your gun.

This is what the Republican bill called the "Cornyn amendment" was going to address.  It would have given the FBI a legal avenue to approach a judge as if they were requesting a warrant as soon as the NICS request for the purchase came in

The FBI would go to the judge and say "hey, we are in the middle of an ongoing investigation about this guy.  We believe he's dangerous, here's why.  Stop this sale." and the court could exercise their judgement based on the presented evidence and write a stay.  In which case NICS would have had a legal reason to reject the sale inside of the 72 hour window even though there wasn't anything on the person's official record.

It sounds like "common sense gun law" to me.  It's the law that Democrats voted against so that they could vote instead for a bill that violated due process, which I am thankful to say was voted down by Republicans.

This resulted in zero forward movement on the FBI's options when facing a default proceed situation with a suspected terrorist.  Because the Democrats didn't like the fact that the judicial system was going to have a check on the power of the executive branch to randomly deny the rights of American citizens.  It is my believe that if you identify as Democrat, that should trouble you, immensely.

Ok, back to NICS.

 Let's talk about the numbers, because I recently stumbled across the 2014 NICS operations report.

NICS processed 21 million requests in 2014.

It denied 90,000 of them.

Approximately 19 million of the determinations were immediate (Less than 2 minutes before the record determination was returned to the FFL after receiving the 4473).


Of the 2 million non-immediate determinations, there were 2,511 cases where they sent a Firearms Retrieval Referral to the ATF.

So, overall, the system is doing pretty well on the majority of cases.  But it has three big problems.

The first problem is: Not all the states report everything correctly to NICS.  Some records are out of date, some are just not getting sent at all.  Some are cases like Virginia where the state laws and the federal laws don't line up correctly.  Who knows how many more of the 19 million "Yes" responses would be "No" if the records were correct?

Additional funding, guidance, and pressure from the White House (since NICS is an FBI project, which is part of the DoJ, which is a part of the executive branch) could help get the state records in line, online, and improved.

Weirdly, we passed a law about this back in 2007, which Bush signed into law.  It promised over a billion dollars in funding to NICS and to the states that needed to update records keeping databases.

https://www.thetrace.org/2015/07/nics-background-check-congress-spending/

Then we sat on the money.

There's a lot of reasons we sat on the money, and they're all bad.

Pro-gun-control Democrats sat on the money because they knew that their voters weren't keeping a close eye on the appropriations board decisions, so as long as they voted in favor of the law, it didn't matter whether they actually funded it or not.  Republicans sat on the money once our new president took office because it didn't jive with their goals of strangling any effort run through the executive branch, no matter how legitimate.

My least favorite reason is an allegation that NRA lobbied against releasing the funds so that NICS would continue to look "flawed enough" that they could argue against extending NICS to private sales.  I'm against mandating a universal background check on private sales, for a lot of reasons that I'll address in a future essay, but keeping NICS handicapped in order to achieve that aim is the wrong approach.  If the allegation is true, it's despicable, and the people at the NRA that hatched that plan are going to go to the special hell.

This was the topic of that other Republican bill the Democrats voted against last week.  It would have allocated more money, plus put more pressure on appropriations to release the money, and more pressure on the states to use it.

Unfortunately, that one failed too.  Shot down by democrats because it didn't mandate universal background checks, which were shot down by Republicans.

Now, I'm against Universal Background Checks.

Next time I write, I'll get into what the problem is with a UBC system, and what we can do to get closer to a world where a private citizen doesn't accidentally enable a mass-murdering fuckhead.

In the meantime, I'd like you to take a few moments and consider whether or not these two bills that were voted down last week sound like "common sense gun law" to you.

They do to me.

If you're a gun-control advocate, understand that hijinks like this week are why no-one on my side of the problem believes you when you try to insist that you're in favor of "common sense gun regulation"

Getting the language right: Assault What?

This is going to take a minute.  Please bear with me.

Imagine you like to cook, right?
There are a series of house fires.  And so it becomes illegal to install new gas stoves.
And so thirty years pass, and you have an electric range, like everybody else in America.
And then someone leaves a towel on his stove.  In a large apartment building.
And the apartment building catches fire.
And a lot of people die.
And you notice that the people that don't cook seem to be pretty well convinced  that everyone should just use induction cooking.  And you understand why a non-cook would feel that way, but you really hope they don’t get electric ranges banned, for a lot of reasons.
But to start the debate about switching to induction, all those people insist that it is just  atrocious that all these gas ranges are causing house fires.

"Wait"  you say "look, those people shouldn't be using their electric ranges wrong, but they aren't using gas ranges.  Gas ranges are banned."
"DO YOU WANT ANOTHER HOUSE FIRE?"
These people say.
---
Or perhaps you're a car enthusiast.
And you drive a Mazda Speed3.  Now it doesn't have a stick shift because standard transmissions have been banned since there were a series of fatal accidents caused by members of the street racing community in the 80s.  But it's got a sport shifter, and it still looks fast.
And then a guy in an Automatic-Transmission Trans-Am spins out at 90 and clips a schoolbus.
And a lot of innocent people die.
And you discover to your anguish that there is a widespread push to insist that all modern cars are built with CVTs.
But to start the argument, the people who commute to work on the train start talking about how awful it is that all these stick shift cars are constantly getting in crashes.
"Hey"  you say "There's like. . . millions of us on the road with sport shifters that didn't hit anybody.  And stick-shift transmissions are already banned."
"ALL THOSE DEAD SCHOOLCHILDREN." The mass-transit commuter crowd screams.
---
Not clicking for you?

Let's try again.
You’re a geek.  Marvel, DC, Star Wars AND Trek.  Dr. Who. You love it all.
And  then after Jessica Jones comes out, there are a series of copycats that decide to deify Kilgrave and try to hypnotize people into doing horrible things.  And a few of them succeed, and there is a very understandable outrage.
And you think to yourself that you really liked Jessica Jones and maybe those people are missing the point and you really hope that it isn’t yanked from Netflix.
And so the people who haven’t watched Jessica Jones but who have fear about more copycats say that all of that stuff with the 9th doctor who abducts that woman is just atrocious and all future episodes of Dr. Who should be banned.
“What?” You say, momentarily bewildered.  “That’s a totally different character in a totally different show!  I mean yes, If you’ve never seen Jessica Jones or Doctor Who, the actor is playing both roles and so they look really similar but the internal motivations of the characters are totally differ--”

“EVIL ABDUCTING HYPNOTISTS.” The masses shout.
Can you imagine that feeling in your mind?  That confused outrage at someone else doing something wretched and criminal with something you love?  And a huge and ignorant mass of people getting angry at a thing they barely understand, but then also calling for something only marginally related to be banned?
This is how people who own AR-15s feel every.
single.
time.
that someone says “Assault Rifle” in the context of the modern gun debate.
So every.
single.
time.
you use the term “Assault Rifle” wrong, a couple of things are going to happen to the person you’re talking to, if they are a member of the pro-gun camp.
1) Their opinion of your familiarity with firearms is going to plummet, making it very hard for them to continue taking your position seriously.
2) They are going to get defensive, and sidetrack whatever your actual point is with a combination of a half-baked firearms history and linguistics lecture and defensive rhetoric.
if you want to be heard--not just argued with--by people on the other side of the fence, learn what an assault rifle is, and then stop using the term to describe the thing you want more closely regulated.
If you want to be informed about guns, so that you can speak about them eloquently, that means you need to understand the differences between a semi-automatic rifle and an assault rifle.  There are lots of passionate gun guys out there that have made diagrams, and written essays, and updated wikipedia pages, and even created excellent videos like the one in the comment section below.  Go forth and be educated.

Maybe, if you get the language right, you’ll even change someone else’s mind.

And wouldn’t that be worth it?

Want to talk about guns? Step One is Getting The Language Right

You're an passionate, caring, American patriot.  You believe in less bloodshed.  You believe in liberation.  You want men and women of all colors and origins to be treated the same under the law. 

And you think that we are currently caught in an untenable morass of terrible laws and horrid arguments about guns  People are wrong on the internet, again.

You're right of course, but being right isn't enough.

You need to be able to lay out your position, thoughtfully, patiently, logically, and do so in such an approachable and non-threatening way that even the people who think they disagree with you realize that they're wrong, and come around to your side.

 Who are you?  Well, that doesn't matter.

You might be a responsible gun owner who loves to teach new people about gun safety and judicious marksmanship, who grew up in a small town, shooting with his brothers on the family plot, who thinks that all these constant new gun laws are just more nails in the coffin of the American dream.  You think that we already have a background check system in place, and that these mass shootings where people who shouldn't have guns buy them without getting stopped demonstrate that the background check is useless anyway.

You might be a passionate liberal who has never fired a gun, and who believes that guns in the hands of private citizens are a relic of a bygone era, that more and more people are dying every day and that our lax gun laws (and the evil NRA!) are to blame.   You think that assault rifles can be purchased over the counter with a 10 minute wait, and that every gun nut is just one lost argument short of snapping and shooting up another place where guns have no business being, like a school, or a church.

Well, I've got some good news and some bad news.

You're both right.  And you're both wrong.

Guess what?  That's the good news.

That's good news because it means you have a platform to start from, and that you have room for improvement.  Those are both good things.

So what's the bad news?

You're ignorant.

And that's different than just being wrong.
 There are holes in your arguments that I could drive a bus through, and they're not flaws in your principles or motivations, they're flaws in your facts.  You are consistently saying things about guns and US gun law that are just flat out wrong.  And you ought to be ashamed.

And I know you probably just thought "Yeah!  Those guys from the other paragraph that wasn't about me should be ashamed.  I saw so many flaws in the description of their opinion!"

I've got some news that the clever ones of you have already figured out: Those paragraphs are both laced with huge errors.

The truth is, most of the anti-gun crowd genuinely thinks that they aren't arguing for confiscation.  They just feel like there's no rules about guns, and maybe we should have a few? That the NRA is a bunch of vile jerks that have dismantled any chance of reasonable, common sense gun law in this country.  Who could blame them?  That's what the internet has been telling them this whole time.

And the truth is, the pro-gun crowd is heartbroken at every shooting--yes, even ones where most of the victims were gay, and were targetted specifically for being gay.  They still think every innocent American has a right to live.  And they think that the anti-gun movement wants to disarm every last one of them and equip a militarized police state with the highest quality military hardware it can find and then put a boot to the necks of every citizen.  And who could blame them? That's what the internet has been telling them this whole time.

And when I say "the internet" I don't mean "mass media" or even "bloggers".  What I actually mean is "you."

You've been telling them that this whole time, because you keep using terminology and rhetoric that is so atrociously wrong that the only possible explanation someone informed could imagine is that you're actively lying so that you can try to push your agenda.

If you want the person  on the other side of the screen to listen to you, you need to slow down, get your mind right, and do your homework.

If you just want to stir shit up and throw rocks from the comfort of your glass house, feel free.

If you want to make changes--real, positive, healthy changes, in this country?

Well then buckle in kids, we've got a bumpy road ahead.