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Senators Seek to Expand Gun Background Checks
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Senators Seek to Expand Gun Background Checks
By Jeff Johnson
CNSNews.com Congressional Bureau Chief
July 31, 2002
Capitol Hill (CNSNews.com) - Four senators, calling themselves an "odd quad," joined together Tuesday to expand the database of information used to permit or deny gun purchases through the FBI's "National Instant Check System."
The four introduced the "Our Lady of Peace Act," which is identical to the companion bill of the same name in the House (H.R. 4757).
The bill is named after a church in Lynbrook, N.Y., where the pastor and a parishioner were shot to death by a man who had a history of mental illness and violent behavior, and was under a restraining order for domestic violence - which he had violated at least twice - when the shooting occurred.
"We are an odd group," Sen. Chuck Schumer (D-N.Y.) said of his colleagues: Sens. Larry Craig (R-Idaho), John McCain (R-Ariz.), and Edward Kennedy (D-Mass.). "But not when it comes to making sure that guns are kept away from drug addicts, felons, illegal aliens, and others."
"The problem is that this kind of information is not always shared with the NICS system," Schumer said. "And so, when the background check is performed, the information never appears, the red flags aren't raised, and the gun purchase goes right through."
Craig said the government has a responsibility to make background checks instant, accurate, and complete, and no excuse for not doing so.
"In a nation where you can walk into any store and swipe your credit card and have an instant accounting of your financial capabilities," he explained, "we cannot do something similar to determine whether that individual is legal or illegal in the action of purchasing a firearm, shame on us as a system for not doing that."
The legislation would mandate that information be provided to the FBI for inclusion in NICS on individuals who:
Are under indictment or have been convicted of a crime punishable by more than one year in prison;
Are fugitives from justice;
Are unlawful users and/or addicts of any controlled substance;
Have been adjudicated as mentally defective or have been committed to any mental institution;
Are subject to a court order restraining them from domestic violence; or
Have been convicted of a domestic violence misdemeanor.
The proposal would provide grants to the states to establish or upgrade information and identification technologies for firearms eligibility determinations; and to improve the reporting of criminal history dispositions and temporary restraining orders as they relate to disqualification from firearms ownership.
McCain noted that checking mental health records, which are seldom automated, has been the main impediment to truly "instant" background checks.
"Probably ten or 15 years ago, technology would not allow us to consider this kind of legislation," he said. "I hope that, with the passage of this bill, that we will be able to, with further improvements in technology, provide for the instant background checks that all of us seek."
Schumer attempted to calm the fears of mental health advocates, who worry personal information about their clients could be inadvertently released by the NICS system.
"We've taken real precautions on that, to really guard the privacy of the mentally ill," he said. "It should be on the record that somebody's mental illness, or being committed to an institution doesn't allow them to have a gun, but all the details are still kept completely away, even from the [NICS] system."
Larry Pratt, executive director of Gun Owners of America (GOA), says the bill still risks the privacy of the mentally ill, and makes a very incorrect assumption about mental illness.
"We object to that as a violation of their medical privacy rights," he told CNSNews.com . "Also, just on pragmatic grounds, knowing that someone has had a mental problem in the past has absolutely nothing to do with predicting future violent behavior."
Pratt points to research published in "Violence and Mental Disorder: Development in Risk Assessment" by John Monahan and Henry Steadman (University of Chicago Press). The study found that mental health professionals could not accurately predict violent behavior even in a group of known mentally ill criminals with a history of violence.
"Psychiatrists and psychologists are accurate in no more than one out of three predictions of violent behavior over a several-year period among institutionalized populations that had both committed violence in the past (and thus had high base rates for it), and who were diagnosed as mentally ill," the report stated.
"They would have done better flipping a coin," Pratt quipped.
The individual responsible for the "Our Lady of Peace" murders was not arrested for the two previous violations of a restraining order, offenses that would have carried mandatory jail time had he been arrested.
"Why didn't they pick him up?" Pratt asked, rhetorically.
Gun Owners of America has compiled documentation of numerous instances where mandatory background checks and other delays cost citizens their lives.
In one such incident, Bonnie Elmasri wanted to obtain a gun to protect herself from her husband, who had repeatedly threatened to kill her. Before the mandatory waiting period and background check had been completed, her husband killed Elmasri and her two sons.
GOA research has also documented instances where individuals denied firearms by the NICS system were able to obtain them illegally.
The group cites the 1999 case of Benjamin Smith, who was rejected by a background check when he tried to buy a weapon from an Illinois gun dealer. According to a published report, Smith "hit the streets and in just three days had two handguns" from an illegal source. Less than a week after being "prohibited" from obtaining a gun by the NICS system, Smith shot two people to death and wounded nine others.
Pratt believes the legislation is merely another attempt to exploit a tragic event with the actual goal of chipping away at the Second Amendment right of individuals to own and possess firearms.
"It's just another 'Schumer & Company' effort to expand the number of Americans who are 'legally' prohibited from owning a gun," he added. "And what Schumer is talking about is not going to make anybody any safer, at all."
The co-sponsors expect both the Senate and House to pass the proposal after the August recess. They say they have been working with the Justice Department to insure that the language of the measure is acceptable to the White House in hopes that the bill would be signed into law before the end of the year.
http://www.cnsnews.com/ViewPrint.asp?Page=\Nation\archive\200207\NAT20020730b.html
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
By Jeff Johnson
CNSNews.com Congressional Bureau Chief
July 31, 2002
Capitol Hill (CNSNews.com) - Four senators, calling themselves an "odd quad," joined together Tuesday to expand the database of information used to permit or deny gun purchases through the FBI's "National Instant Check System."
The four introduced the "Our Lady of Peace Act," which is identical to the companion bill of the same name in the House (H.R. 4757).
The bill is named after a church in Lynbrook, N.Y., where the pastor and a parishioner were shot to death by a man who had a history of mental illness and violent behavior, and was under a restraining order for domestic violence - which he had violated at least twice - when the shooting occurred.
"We are an odd group," Sen. Chuck Schumer (D-N.Y.) said of his colleagues: Sens. Larry Craig (R-Idaho), John McCain (R-Ariz.), and Edward Kennedy (D-Mass.). "But not when it comes to making sure that guns are kept away from drug addicts, felons, illegal aliens, and others."
"The problem is that this kind of information is not always shared with the NICS system," Schumer said. "And so, when the background check is performed, the information never appears, the red flags aren't raised, and the gun purchase goes right through."
Craig said the government has a responsibility to make background checks instant, accurate, and complete, and no excuse for not doing so.
"In a nation where you can walk into any store and swipe your credit card and have an instant accounting of your financial capabilities," he explained, "we cannot do something similar to determine whether that individual is legal or illegal in the action of purchasing a firearm, shame on us as a system for not doing that."
The legislation would mandate that information be provided to the FBI for inclusion in NICS on individuals who:
Are under indictment or have been convicted of a crime punishable by more than one year in prison;
Are fugitives from justice;
Are unlawful users and/or addicts of any controlled substance;
Have been adjudicated as mentally defective or have been committed to any mental institution;
Are subject to a court order restraining them from domestic violence; or
Have been convicted of a domestic violence misdemeanor.
The proposal would provide grants to the states to establish or upgrade information and identification technologies for firearms eligibility determinations; and to improve the reporting of criminal history dispositions and temporary restraining orders as they relate to disqualification from firearms ownership.
McCain noted that checking mental health records, which are seldom automated, has been the main impediment to truly "instant" background checks.
"Probably ten or 15 years ago, technology would not allow us to consider this kind of legislation," he said. "I hope that, with the passage of this bill, that we will be able to, with further improvements in technology, provide for the instant background checks that all of us seek."
Schumer attempted to calm the fears of mental health advocates, who worry personal information about their clients could be inadvertently released by the NICS system.
"We've taken real precautions on that, to really guard the privacy of the mentally ill," he said. "It should be on the record that somebody's mental illness, or being committed to an institution doesn't allow them to have a gun, but all the details are still kept completely away, even from the [NICS] system."
Larry Pratt, executive director of Gun Owners of America (GOA), says the bill still risks the privacy of the mentally ill, and makes a very incorrect assumption about mental illness.
"We object to that as a violation of their medical privacy rights," he told CNSNews.com . "Also, just on pragmatic grounds, knowing that someone has had a mental problem in the past has absolutely nothing to do with predicting future violent behavior."
Pratt points to research published in "Violence and Mental Disorder: Development in Risk Assessment" by John Monahan and Henry Steadman (University of Chicago Press). The study found that mental health professionals could not accurately predict violent behavior even in a group of known mentally ill criminals with a history of violence.
"Psychiatrists and psychologists are accurate in no more than one out of three predictions of violent behavior over a several-year period among institutionalized populations that had both committed violence in the past (and thus had high base rates for it), and who were diagnosed as mentally ill," the report stated.
"They would have done better flipping a coin," Pratt quipped.
The individual responsible for the "Our Lady of Peace" murders was not arrested for the two previous violations of a restraining order, offenses that would have carried mandatory jail time had he been arrested.
"Why didn't they pick him up?" Pratt asked, rhetorically.
Gun Owners of America has compiled documentation of numerous instances where mandatory background checks and other delays cost citizens their lives.
In one such incident, Bonnie Elmasri wanted to obtain a gun to protect herself from her husband, who had repeatedly threatened to kill her. Before the mandatory waiting period and background check had been completed, her husband killed Elmasri and her two sons.
GOA research has also documented instances where individuals denied firearms by the NICS system were able to obtain them illegally.
The group cites the 1999 case of Benjamin Smith, who was rejected by a background check when he tried to buy a weapon from an Illinois gun dealer. According to a published report, Smith "hit the streets and in just three days had two handguns" from an illegal source. Less than a week after being "prohibited" from obtaining a gun by the NICS system, Smith shot two people to death and wounded nine others.
Pratt believes the legislation is merely another attempt to exploit a tragic event with the actual goal of chipping away at the Second Amendment right of individuals to own and possess firearms.
"It's just another 'Schumer & Company' effort to expand the number of Americans who are 'legally' prohibited from owning a gun," he added. "And what Schumer is talking about is not going to make anybody any safer, at all."
The co-sponsors expect both the Senate and House to pass the proposal after the August recess. They say they have been working with the Justice Department to insure that the language of the measure is acceptable to the White House in hopes that the bill would be signed into law before the end of the year.
http://www.cnsnews.com/ViewPrint.asp?Page=\Nation\archive\200207\NAT20020730b.html
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Comments
School president sues to preserve a 25-year ban
By Mary Leonard, Globe Staff, 8/4/2002
ASHINGTON - Kelly Ann Booth comes from a family of gun owners and considers herself pretty handy with rifles and revolvers. Still, it will be nothing but trouble, she says, if her classmates or professors at the University of Utah start carrying concealed weapons on campus.
''I cannot think of a single good reason to take a gun into a classroom,'' said Booth, a law student from Sandy, Utah. ''There's always a potential for conflict on a campus. Do you really want weapons around?''
J. Bernard Machen, the University of Utah president, says no - emphatically. To preserve the school's 25-year-old ban on firearms at the Salt Lake City campus, Machen has sued Utah's attorney general, who says a state law allowing permit holders to carry concealed weapons applies to college campuses.
The lawsuit, which is expected to be argued before a federal judge next month, has drawn support from national higher-education groups that embrace Machen's arguments that the First Amendment guarantees academic freedom and gives colleges the right to ban guns to maintain a safe and open learning environment.
College administrators have grown more concerned about guns on campus since a dean, professor, and student at the Appalachian School of Law in Virginia were killed in January when a suspended student opened fire with a semi-automatic handgun.
''The beauty of a college campus is that people with widely differing views can discuss them with some passion and without fear or intimidation,'' said Machen, who was provost at the University of Michigan before coming to Utah in 1998. ''Guns on campus could impact the climate for free expression and change the dialogue.''
Almost all colleges have codes of conduct that forbid firearms, regardless of state or local laws, and many campuses impose restrictions on alcohol that are tougher than those of local jurisdictions. Legal experts say the University of Utah's lawsuit is the first to test the autonomy of college administrators to set their own social policy on guns in the name of campus security and academic freedom.
Massachusetts law restricts the carrying of concealed weapons, and anyone found with one on a college campus without authorization from a law enforcement official can be fined $1,000. Even so, the private and public institutions throughout the state have gone beyond the state law and adopted policies that strictly forbid weapons of any kind to be used or carried on campus.
''We first try to abide by the laws of the Commonwealth of Massachusetts,'' said Robert Randolph, senior associate dean of student life at MIT. ''But we may want more rigid standards because of the environment where you have 10,000 people living in close proximity.''
Mark Shurtleff, Utah's attorney general, says the only legal issue is whether a public university can ignore a law enacted by a state legislature. Shurtleff maintains it cannot. At the request of legislative leaders, he issued an opinion in November that the no-gun policy on the campus of 44,000 had to go.
''I am the state's chief enforcer of the law, even if it's an unpopular law,'' said Shurtleff, who has argued that federal courts have no jurisdiction over what he considers a matter of state law. ''The president of the university claims to be above the law, and that's what it boils down to.''
In 1995, Utah passed a law that allows people to obtain a permit to carry a concealed weapon if they are older than 21, have a clean record, good character, no mental illness, and a passing mark on a gun safety test. Some exemptions were written in, making prisons, courts, mental institutions, airports, bus terminals, and Olympics venues off-limits for concealed-weapons carriers.
Schools were not exempted, and a federal law that bars guns from campuses still allows people with state permits to carry concealed firearms there.
According to the National Rifle Association, 32 states have permissive gun laws like Utah's. But college bans on firearms so far have become a hot issue only in Utah, where the Legislature, which is dominated by guns-rights advocates, has ordered Machen to allow students, faculty, or staff with permits to carry concealed handguns and threatened to cut the president's salary in half if he did not comply.
In March, Machen took the unusual step of suing the attorney general in US District Court in Salt Lake City to obtain an injunction against the Legislature's order. Filings from both sides due at the end of the week could touch off a noisy, divisive battle.
A recent poll of University of Utah students showed 84 percent against allowing guns in classrooms, but only 49 percent thought the entire campus should be exempt from the concealed-weapons law. Briefs supporting the university's position have been filed by six higher-education groups and a coalition of churches, unions, and civic organizations in the state.
Officials at Utah State, which does not have a campus gun ban, have taken Machen's side, as has the president of Brigham Young University, a Mormon institution with considerable political weight in the state.
Shurtleff said he would like the NRA to take a position in the case. It has not yet, but NRA spokesman Andrew Arulanandam said the group's position is that law-abiding citizens have the constitutional right to protect themselves. ''Just because a person is on a college campus doesn't mean they are less immune to an attack,'' he said.
Don Thompson, a student who heads the Gun Rights Advocates at the University of Utah law school, has urged classmates with gun permits to leave their firearms at home until the lawsuit is resolved, ''We tell them, `respect the president's request,''' said Thompson, a 28-year-old gun owner.
There is plenty of debate over whether concealed-weapons laws deter crime, as many proponents assert. ''We have a university president who is perfectly willing to endanger the lives of students and faculty because he has an irrational fear of guns and an attachment to political correctness,'' said Sarah Thompson, executive director of the Utah Gun Owners Alliance, an advocacy group.
But gun-control advocates say allowing firearms on campuses will make them less secure, adding a potentially deadly element to conflicts that arise from high-density living and excessive drinking.
Matthew Miller, associate director of Harvard's Injury Control Research Center, said his studies on campus violence show a strong correlation between students owning guns and engaging in binge drinking, driving under the influence, getting into fights, and vandalizing property.
''What we know is that people who have guns on campus behave in ways that don't make me feel comfortable,'' said Miller, who is scheduled to be an expert witness for the university when the case is heard. ''Campuses are not idyllic sanctuaries now, and I'm not sure we want to change policies that make it easier for students to carry guns.''
http://www.boston.com/dailyglobe2/216/nation/Fight_to_keep_guns_off_Utah_campus+.shtml
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
MENDOCINO DA JOINS FRESNO DA'S SUIT
Mendocino County District Attorney Norman L. Vroman today joined Fresno DA Ed Hunt's lawsuit challenging Senate Bill 23, the 1999 amendment to the state's "assault weapon" law that bans firearms based on their cosmetic features.
The amended Complaint, filed in Fresno Superior Court, names DA Vroman, DA Hunt, the Law Enforcement Alliance of America (LEAA) (a national association of law enforcement officers and civilians), an association of state firearm dealers, several individual gun owners, and the CRPA as plaintiffs. The lawsuit alleges that the statute is unconstitutionally vague, and that the California Department of Justice's (DOJ's) regulations for implementing the law, which were supposed to clarify the terms used in the original statute, in fact do not provide gun owners, dealers, police, or prosecutors with sufficient guidance to determine what firearm features are prohibited. Hence, the prosecutors cannot enforce the law fairly and unilaterally, and civilians cannot determine how to comply with it.
"Not only are the regulations themselves, ambiguous, but unfortunately the Attorney General, who is the chief law officer in the State under the California Constitution (Art. V, sec. 13), is sending mixed signals to front line law enforcement, prosecutors, and civilians working under him. In fact, DOJ is enacting policies that conflict with its own regulations," new plaintiff DA Vroman says. "The DOJ training class I attended in Sacramento was no help. I simply can't do my job, and I can't do justice, under these confusing circumstances. There has got to be some standard set for everyone to follow."
Though not named as plaintiffs in the lawsuit, other District Attorneys and law enforcement officers have joined Hunt and Vroman in criticizing the DOJ's attempt to implement the state "assault weapon" law.
A spokesman for the San Francisco district attorney's office told San Francisco legal newspaper The Recorder on September 20th that his office too has had considerable trouble defining what constitutes an "assault weapon." "There has been confusion," said DA spokesman Fred Gardner.
Kern County District Attorney Edward Jagels also expressed concern about enforcing the law fairly. "A Deputy DA from this office attended a DOJ training class in San Diego that was supposed to clarify how the law should be applied." Jagels said. "He came away with more unanswered questions than he went in with. And we repeatedly have to field questions from law enforcement about what it all means. Often, we simply can't tell them."
In Ventura County, District Attorney Michael Bradbury said he too had issues. "Deciphering these regulations is a near impossible task." Bradbury says. "If the Legislature wants to condemn a subclass of firearms, they have to identify those firearms clearly. If gun experts can't figure out what this law covers, how is the average law abiding gun owner supposed to know?"
Orange County Sheriff-Coroner Mike Carona agreed: "The law's requirements are impossible to decipher," he said. "Not just for civilians, for my deputies as well."
Proof of the confusion surrounding the "assault weapon" law's requirements lies in last year's Senate Bill 626 (Perata). SB 626 repealed a key feature of SB 23, changing it to allow late registration of "assault weapons" by law enforcement officers. SB 626 acknowledges the confusion over which privately owned guns are covered by the law. The bill recognizes and grants immunity to the many police officers who own "assault weapons" but did not register their firearms by the original cut off date as required, and who were subject to felon prosecution. Civilians who were equally confused by the regulations have also become unwitting accidental felons for inadvertently violating the law. SB 626 gave them no relief. This lawsuit seeks to do so.
http://www.crpa.org/pressrls080502.html
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878