Perhaps it’s technically the New York Times that’s saying a “flaw” is what allowed Roof, the Charleston church killer, to buy a gun. “Flaw” is the word used in the NYT headline. The actual communication from the FBI is summarized this way in the text:
A loophole in the system and an error by the F.B.I. allowed the man, Dylann Roof, to buy the .45-caliber handgun despite having previously admitted to drug possession, officials said.
The “error” by the FBI stands up to scrutiny as an actual error. The “loophole” in the background check system is another story. Here’s the extended summary from NYT:
Mr. Roof first tried to buy the gun on April 11, from a dealer in South Carolina. The F.B.I., which conducts background checks for gun sales, did not give the dealer approval to proceed with the purchase because the bureau needed to do more investigating about Mr. Roof’s s criminal history.
Under federal law, the F.B.I. has three days to determine whether there is sufficient evidence to deny the purchase. If the bureau cannot come up with an answer, the purchaser can return to the dealer and buy the gun.
In the case of Mr. Roof, the F.B.I. failed to gain access to a police report in which he admitted to having been in possession of a controlled substance, which would have disqualified him from purchasing the weapon. The F.B.I. said that confusion about where the arrest had occurred had prevented it from acquiring the arrest record in a timely fashion.
Mr. Roof’s application was not resolved within the three-day limit because the F.B.I. was still trying to get the arrest record, and he returned to store and was sold the gun.
Many major national gun dealers, like Walmart, will not sell the weapon to the buyer if they do not have an answer from F.B.I., but many smaller stores will.
Without ragging on the FBI, we can still judge that the explanation about the error sounds a little mealy-mouthed. If the FBI knew that there had been an arrest – which seems to be implied by the sentence in the NYT story – it shouldn’t have taken three days to find out where it happened. Agency “error” does seem to fit what happened here.
There is also the point, however, that it’s quite possible for a prospective “Dylann Roof” to attempt a gun purchase with no arrest record, and no record of pleading to possession.
The facts of this case don’t drive us to change the law. Changing the law wouldn’t prevent the human error at the FBI, nor would it ensure that a potential mass murderer with no criminal record would be denied a gun. There’s no such thing as a law that will prevent every undesired outcome.
The fact that many dealers don’t wait past the three-day federal window to complete a gun sale is being characterized as a “loophole” or “flaw.” But the three-day window has an end date for a reason.
If dealers were required by law to wait until the federal authorities gave them a response, gun buyers would be entirely at the mercy of the federal government. Federal agencies could slow-roll all background checks if they wanted to, and leave gun buyers in limbo indefinitely.
Does anyone doubt that the Obama administration would do just that, if gun sellers were required to wait for a formal response from the feds before completing a gun sale?
The federal law was designed to put the onus on the government to find disqualifying information about prospective gun buyers within a reasonable window. This isn’t a bug in the system; it’s a feature. (If she hadn’t been killed by her ex-boyfriend on 3 June, you could ask Carol Bowne of New Jersey – who applied to New Jersey for a handgun permit to protect herself on 21 April – whether extended waiting periods imposed by government authorities are a net positive or not.)
No law can be made human-error-proof, and it’s a non-starter to leave it in the hands of federal agencies how long a seller and buyer have to wait to complete a gun sale. Congress is right to insist that government, not citizens, bear the onus of the background-check time window.
But there’s clearly a common-sense approach here. If the likelihood of administrative error at the FBI could be reduced, by increasing the FBI’s manning or automation, then do that. Maybe the FBI is undermanned or underequipped for meeting the three-day background-check window. Fix that problem.
Doing that won’t prevent every bad outcome, but if we take the FBI’s word for it, in the particular case of Dylann Roof, it might very well have been the thing that would have kept a commercially purchased gun out of his hands, at least for a little bit longer.
Of course, he could also have found a way to get a gun without going to a licensed dealer or a gun show. No law will ever make that impossible.