Dangerous Gun Policy in 2017

May 3, 2018

Bottom Line: On multiple fronts, the Trump Administration and the 115th Congress have worked to roll back existing gun laws—making it easier for fugitives from justice and people with severe mental illness to get guns. These rollbacks have kept 433,000 records for people with mental illness out of the gun background check system and made it harder—impossible in some cases—to determine whether as many as 8 million fugitive records are prohibiting. Legislation that passed the House of Representatives would eliminate an additional 167,000 mental health records from the gun background check system.

President Trump signed a bill in February 2017Pub. L. 115-8 repealing a Social Security Administration (“SSA”) rule that would have sent prohibiting mental health records to the national background check system.

  • Through its formal rulemaking process, SSA finalized a plan in 2016 to submit prohibiting records for severely mentally ill beneficiaries to the National Instant Criminal Background Check System (NICS). All federal agencies are required by lawThe NICS Improvement Amendments Act of 2008 to send to NICS any records in their possession for people who are prohibited from having guns.
    • SSA would have sent records for beneficiaries who are severely disabled by a mental impairment, and are incapable of managing their benefits without a representative. An estimated 433,000 individuals are prohibited from gun possession on this basis.
  • The February 2017 law not only repealed the SSA rule, it also blocked the agency from submitting these records. These SSA beneficiaries remain prohibited under the law, but it is now impossible for a background check operator to see their prohibited status and block a dangerous and illegal sale.

President Trump’s Department of Justice (“DOJ”) issued a new policy in January 2017 that narrows the law for which fugitives from justice are prohibited.http://bit.ly/2pbZjXM

  • The background check system currently draws from a pool of as many as 8 million arrest warrants (between state and federal databases). Under the January 2017 DOJ policy, a background check operator has a much higher—often impossible—burden of proof to establish whether those warrants should prohibit a gun purchase.
    • Under the new policy, an operator must establish that the person actually knew about the warrant and actually left the state where the warrant was outstanding.What’s more, operators will be up against a hard deadline to make this difficult determination, because of the loophole in federal law that allows gun sales to proceed if the background check isn’t complete within three business days.
  • Indeed, in the first year after the policy came into place, the number of denials to fugitives plummeted by 80 percent.There were an average of 2,038 monthly denials on this basis from February 2016 through January 2017, and an average of 410 such denials from March 2017 through February 2018. FBI data obtained by Everytown for Gun Safety.

The House of Representatives passed a bill in March 2017H.R. 1181 that would repeal the gun prohibition for severely mentally ill Veterans’ Affairs (“VA”) beneficiaries.

  • Under current federal law, VA beneficiaries are prohibited from having guns if they are found by the VA to be mentally incompetent and unable to manage their own affairs. The 21st Century Cures ActPub. L. 114-255, passed in December 2016, strengthened the existing VA process to provide further comfort that beneficiaries had a thorough hearing before a finding is made.
  • The bill that passed the House in March 2017 would repeal the prohibition altogether for beneficiaries who are subject to an incompetency findingSimilar legislation (S.2386) introduced in the Senate, which would partially roll back this prohibition, rather than repeal it. It was scheduled to be heard in committee in February 2018, but the hearing was postponed.—despite the fact that more than 20 veterans die by suicide every day.Department of Veterans Affairs. “VA Suicide Prevention Program: Facts about Veteran Suicide.” July 2016. Available at http://bit.ly/2cex5b8
  • In 2016, the background check system included records for 167, 815 prohibited VA beneficiaries. Under the House bill, those records would no longer be prohibiting—and they would be purged from the system.