Here’s what America can do now about gun violence

A litany of exasperating rituals flows from America’s regular mass shootings. One of the most frustrating is the hand-wringing that our politics is so polarised that there’s no way to move forward.

Since assault weapons bans aren’t coming back and AR-15-style rifles are here to stay, the most important thing we can do is modernise the background check system, around which there’s a modicum of bipartisan consensus. What’s required is gritty work in the administrative trenches that won’t get anyone elected — and there is substantial progress to report. But now we need more.

The FBI’s National Instant Criminal Background Check System, known as NICS, stitches together three databases of state and federal criminal history records and other so-called hot files. Before the NICS was set up in 1993, gun checks were largely the province of the states; some continue to do their own reviews.

The NICS checks records to either approve consumer purchases from federally licensed firearms dealers or deny them to 10 categories of “prohibited persons”: felons, fugitives, convicted drug users, people in the country illegally, those who’ve renounced US citizenship, anyone dishonourably discharged from the military, persons under a restraining order in regard to an intimate partner or convicted of a misdemeanour violent crime and anyone who has been “adjudicated” as a “mental defective” or committed to a psychiatric institution.

Sounds good — but sadly, the NICS remains a false promise. Conceived as a first line of defence, the system is still honeycombed with enormous data gaps, loopholes and disputes over how those prohibited categories should be defined. Hundreds of thousands of crucial records remain outside the system, stacked in dusty boxes in courthouse basements or in legal limbo. As a result, lots of people who shouldn’t are buying guns.

“We know it is deadly to be missing even one critical record, and we’ve seen that in tragedies,” Rob Wilcox told me. He’s the senior director of federal government affairs policy for the group Everytown for Gun Safety.

Mental health records provide an especially vexing example. State privacy laws have frequently prohibited the sharing of records — health care providers were hesitant too — and most states lacked a contact person to collect the information and send it to the FBI.

In April 2007, Seung-Hui Cho killed 32 people at Virginia Tech University with guns he bought despite a documented history of court-ordered mental health treatment — records of which never made their way into the system. That shooting brought attention to what the Everytown group called “fatal gaps in record submissions that undermine the background check system”. A 2011 study by the National Centre for State Courts found that states struggled even reporting estimates on mental health adjudications or commitments.

Other issues involving mental health are perhaps more nuanced. Early reporting indicates that Mauricio Garcia, the gunman who just this month killed eight people at Allen Premium Outlets outside Dallas, was in 2008 expelled from the army after three months, perhaps because of mental health issues. An Army official told The Dallas Morning News that Garcia was terminated under a regulation related to a host of conditions, including disorders that could disturb “perception, thinking, emotional control or behavior”. If a dishonourable discharge triggers a NICS bar on obtaining a gun, shouldn’t other kinds of separations from the military as well?

Many other sorts of records are also an unmitigated mess. There are millions of accessible arrest records but often no solid information about the disposition of the case. A 2013 study by the National Consortium for Justice Information and Statistics concluded that as much as a quarter of all felony convictions were “not available” in the NICS. Orders deriving from domestic relations cases may reside only in local courthouses and are challenging to untangle. Many drug arrests don’t make their way into the system either.

This dry list of data issues masks heartbreaking consequences. In late 2021, the families of nine people massacred six years earlier at Emanuel AME Church in Charleston, South Carolina, reached an $88 million settlement with the Justice Department of their suit alleging that gaps in NICS data enabled the racist killer to obtain a gun despite his earlier drug arrest. An internal FBI report partly blamed “untimely responses and/or incomplete records” from other law enforcement agencies and also cited a policy of relying on faxes rather than emails or phone calls to seek missing records.

Against that depressing backdrop, there has been important progress. Less than a year after the Virginia Tech shooting, with support from the National Rifle Association, Congress passed and president George W. Bush signed the NICS Improvement Act, designed to provide the states grants to get more of their mental health and other records to the NICS. Thirty-two grants to state-level agencies totalling $42.4 million were awarded through fiscal year 2020.

This article originally appeared in The New York Times.