COMMENTARY: House Bill 325 ‘not an answer’ to gun crimes in Delaware

House Bill 325, currently pending in the Delaware General Assembly, is a bill supported by the Bloomberg-financed Everytown for Gun Safety. The premise of the bill is that there is a “loophole” in the national background check system and that HB 325 would fix this loophole.

The supporters of HB 325 bill are wrong on both counts.

Under the current federal “instant” background check, a person attempting to purchase a firearm from a dealer must complete, under penalty of perjury, a federal Form 4473 and provide government identification. In Delaware, this requirement applies to virtually all firearms transfers, not just purchases from a dealer. The dealer then contacts the National Instant Criminal Background Check System center, and provides information regarding the prospective buyer and the sale.

NICS provides the dealer with one of three responses. The first option is for the sale to be approved, and the transaction goes forward. The second option is for the sale to be denied, which means that NICS has determined that the buyer in question cannot legally purchase a firearm. The third option is for the sale to be “delayed,” which means that the NICS needs additional time to determine whether the sale is permitted.

The delay period is up to three business days (defined as days which state offices are open), not including the day the initial contact was made. For example, if a buyer attempted to purchase a shotgun on Thursday, the three-day period would end Tuesday, and the firearm could be transferred on Wednesday if, during the interim, NICS did not find further evidence that the sale was prohibited.

Far from being a “loophole,” this three-day period was carefully crafted at the time the so-called Brady Bill was passed in 1993. The simple fact is that, in this era of the computer, if the records are not available in a day or two, they are not likely to be any more available in a month or two. Either law-enforcement agencies or other authorities have submitted accurate data to the NICS system, or they have not. With more than 40,000 checks being run every week, it is impossible for NICS to send investigators out to fully check the records in every agency of each state a potential purchaser may have lived in or visited.

Supporters of House Bill 325 have claimed that if HB 325 had been enacted in South Carolina, then, the Charleston church shooting might have been prevented. This claim is similar to a claim made by Hillary Clinton and thoroughly debunked by FactCheck.org, a project of the Annenberg Public Policy Center. In fact, the Charleston shooting occurred two months after the shooter purchased the gun. Why did the NICS not stop the purchase? Because there were at least two errors in the data submitted to NICS. These errors were only discovered after the shooting, when the FBI did a full investigation to determine what had gone wrong.

It is also important to understand that just because the three-business-day period has expired, the NICS investigation does not stop. NICS investigators continue their investigations for up to 90 days. If they discover information prohibiting the sale after the sale is completed, they can and do contact ATF or local law enforcement to retrieve the firearms. In the last two years, some 16 firearms were recovered after the sale in Delaware. None of these firearms was involved in any criminal act after the sale.

While each of us must feel compassion for someone whose family member was the victim of a senseless murder, HB 325 is not an answer. Criminals do not buy their firearms from licensed dealers because they know they will not pass the background check, and they risk prosecution for even trying to legally purchase a gun. Criminals obtain their guns the same way they obtain drugs — they steal them or buy them illegally.

The real solution is to enforce the firearms laws already on the books. In Delaware, between 2012 and 2014, 71 percent of felony weapons charges were dropped before trial. According to a Delaware Criminal Justice Council, during the 2012-2014 period, 80 percent of the more than 5,000 charges for possession of a weapon during the commission of a felony were not prosecuted. Prosecuting and incarcerating those who commit crimes with weapons makes far more sense than further burdening law-abiding citizens.

EDITOR’S NOTE: Thomas D. Shellenberger, of Hockessin, is a Wilmington-based Delaware attorney and the public information officer for the Delaware State Sportsmen’s Association.

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