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Gun violence has been a pressing concern on many peoples' minds—and for good reason. As of July 5, Insider reported that there had been at least 314 mass shootings in the country this year — and that number continues to grow.
Regardless of political beliefs or party affiliations, most Americans agree that firearms should not be in the hands of dangerous, unstable individuals. According to a May 2022 survey from Morning Consult and Politico, 88% of the population support background checks on all gun sales.
But for background checks to be effective, it's important to understand the flaws in the current system — and how to fix them.
Putting too much faith in the National Instant Criminal Background Check System (NICS)
Gun regulation dates back to 1934 when the National Firearms Act (NFA) was passed to regulate the distribution and possession of certain firearms and accessories. Then came the Gun Control Act (GCA) of 1968, which sought to keep firearms out of the hands of those not legally entitled to possess them. (Disqualifying factors include age, criminal background, or incompetency.) Generally, the GCA regulates who sells, purchases, and possesses firearms.
The Brady Handgun Violence Act (Brady Law) of 1993 mandated federal background checks on firearm purchasers and also imposed a five-day waiting period on firearm transactions. As part of this act, the attorney general was required (within five years of enactment) to establish a national instant background check system. That meant that keeping guns out of the wrong hands was almost entirely dependent on this system, which the FBI launched in 1998. It's now known as the National Instant Criminal Background Check System (NICS) and it sources every background check required for a legal firearm purchase.
Here's why that's a problem.
The federal government cannot require states to report their information to the NCIS
In the United States, there are federal laws and state laws. Breaches of federal law are often processed in federal courthouses while breaches of state law are processed in state (or county) courthouses. The due process of crimes committed against the state fall into the "powers not delegated to the United States…" category established by the 10th Amendment.
Unfortunately for the federal government, the overwhelming majority of crimes are processed by the states.
In short, the states are usually under no obligation to report their business to the federal government when it comes to criminal records data. Therefore, the federal government can't make mandates to ensure the accuracy of their criminal records information.
According to the FBI, 43 states had met the requirements for collecting crime data according to the agency's specifications as of Oct. 31, 2020. That means just 86% of the country is adequately covering its bases when it comes to screening gun buyers. That leaves plenty of room for the wrong person to wield a firearm.
The NICS database doesn't contain adequate information
Questionable data integrity is one thing, but a lack of pertinent information is another glaring issue with the NICS database.
In a 2018 article published on PBS, Martha Bellisle wrote she believes the FBI's background check database should, in theory, have "a definitive list of people who are prohibited from having guns." This would include convicts, people who'd been committed to a mental institution, dishonorably discharged military members, drug addicts and more.
But Bellisle adds that "the database is incomplete."
That's because local law enforcement, the military, federal and state courts and even hospitals might not always send records to the NICS in a timely fashion — if at all.
Specific instances where the system failed
Too often it's only after a deadly massacre that holes in the background check process surface. Even former FBI Director James Comey has gone on record about these lapses in the system.
According to a 2015 NPR article by Carrie Johnson, the FBI found that the man who killed nine people in a church in Charleston, South Carolina, should never have passed his background check. Because of inaccurate information in the database and poor communication, the perpetrator was able to buy a gun after waiting out the three-day window to hear back from the FBI. Several weeks later, he took the lives of nine people.
A similar instance happened in the Sutherland Springs Church mass shooting in 2017. An NPR article written by Camila Domonoske and Richard Gonzalez noted that the Holloman Air Force Base Office of Special Investigations failed to report a domestic violence case to the NICS.
"Under federal law, his conviction disqualified him from legally possessing a firearm. But there was an apparent breakdown in getting information about his conviction to the proper federal database," Domonoske and Gonzalez wrote. The perpetrator shot and killed 26 people with a gun he should never have been allowed to purchase.
Though the FBI isn't to blame for these tragic situations, many people's lives could have been saved if some of these holes had been patched up.
So, now it's time for the solution.
Why the private sector may be better for background checks
Private consumer reporting agencies (CRAs), specifically background screening companies, have been trusted by both domestic and global organizations for decades to provide background checks on new hires, tenants, volunteers and more.
While many government agencies stick with the NICS process, given the choice, many companies elect to partner with a private background screening vendor. That's because the private sector is generally faster, more accurate, more comprehensive and more customizable.
While the FBI has access to database information, so do private screening companies. In fact, private screeners are able to search the following and more:
- Federal fugitive files
- State and county record repositories
- Prison parole and release files
- Sex offender records
- Foreign Nationals Database (OFAC)
- National Security/Terrorist Watchlist Database
- FBI most wanted
- Interpol most wanted
- DEA fugitives list
- Federal courthouse records from all jurisdictions.
Of course, it's important to remember that most databases aren't sufficient as stand-alone searches since states often don't report all of the necessary information.
Private screening companies are regulated by the Fair Credit Reporting Act, requiring them to verify records directly at the source (the jurisdiction or courthouse where the crime was committed and recorded).
Furthermore, many common screening packages for employment include county court records searches in addition to database searches. These searches hand-pull records from the courthouses and significantly help to patch holes in the national criminal database net.
The private sector can also drug test large quantities of people, which is something the FBI can't do.
In short, private screeners have more industry knowledge, resources, capacity and solutions than those at the federal level when it comes to background checks. The shortcomings of the federal government (in the context of background screening) have a constitutional basis which makes them difficult to address.
The solution that could save more lives
Given all the evidence above, it's clear that there are better methods of handling background checks than relying on the federal government. Screening buyers through the private sector could prevent needless, gun-related deaths, which means it's certainly worth a try.
Utah firm Peopletrail specializes in conducting background checks for businesses and employers. To learn more about the company's take on federal versus private background checks, visit peopletrail.com.
