Senator Ted Cruz ‘s interview on Fox News is all over the Internet now, and indeed is embedded below for your perusal.
Speaking on Monday, 6 November, Cruz explained that in 2013, he and Senator Chuck Grassley of Iowa co-sponsored a gun bill that would have addressed the two major shortfalls in how the background-check system dealt with Devin Kelley’s applications to buy firearms. (H/t: Right Scoop)
One of those shortfalls is the one most people know about by now. The Air Force failed to report Kelley’s domestic assault conviction from 2012 to the database used by the NICS background-check system.
The other shortfall is that the system probably wouldn’t have reacted, even if it recognized what he was doing, when Kelley lied on (more than one) Form 4473 about whether he had a disqualifying condition such as a misdemeanor crime of domestic violence (MCDV) conviction.
Once he had been convicted in his general court martial, it was a felony for him to lie about that on any 4473 submitted later. He appears to have submitted forms for multiple gun purchases, and as Cruz says in the video, he lied on the 4473s about his disqualifying conviction. Tracking and prosecuting that aspect of his case would have made him a convicted felon. But during the Obama years, such prosecutions plummeted.
Kelley apparently had real mental health problems as well, and although Cruz doesn’t mention it, the Grassley-Cruz bill from 2013 addressed that too, as an aspect of gun-involved crime.
Is it fair of Cruz to claim that the Grassley-Cruz bill could have tightened the performance of the background-check system enough to stop Kelley (at least stop him from buying a gun through a licensed dealer)?
You can decide. Here’s what the bill would have done, according to the outline of it provided in April 2013.
Regarding the Air Force’s reporting, the bill would have significantly enhanced accountability. Under the NICS Improvement Amendments Act of 2007, federal agencies like the Air Force are required to submit the information they have on disqualifying convictions (like Kelley’s) to NICS on at least a quarterly basis. (See Title I Section 101.)
But the accountability for whether that’s actually being done is basically non-existent. That’s something that has been recognized in the past, and the Grassley-Cruz bill proposed requiring the agencies to report regularly to Congress how many conviction records they were submitting to NICS.
The effect of that would be to establish a baseline and patterns so that Congress would have a measure of how diligently the federal agencies were conforming to the reporting requirement. In the absence of such regular tallies from the agencies, there’s no visibility on their performance at all.
Regarding the felony of lying on the 4473, the Grassley-Cruz bill would have required DOJ to significantly increase its prosecution of felons and fugitives trying to buy guns. Cruz pointed out at the time that the Obama administration had dramatically reduced those prosecutions, and was letting tens of thousands of such miscreants skate.
He summarized a number of relevant issues in an op-ed in the Houston Chronicle in May 2013, and here’s what he had to say about the failure to prosecute illegal gun applicants:
The Obama administration has not made it a priority to prosecute felons and fugitives who try to illegally purchase guns. Indeed, in 2010, 48,321 fugitives and felons tried to illegally purchase firearms. The Obama administration prosecuted just 44. Forty-four out of 48,321.
Under Obama, gun crime prosecutions hit a decade low in 2011 – down 30 percent from their record high in 2004.
Grassley-Cruz would have established a task force funded to reverse that trend: to prosecute felons and fugitives who illegally tried to get guns.
The principle behind both of these measures was to strengthen the enforcement of laws that apply where the pressure should be: on criminals, and others with disqualifying conditions for gun ownership. Restricting the options of law-abiding people is not effective for reducing gun-involved crime; applying the law more rigorously to criminals is.
Grassley-Cruz also had a section on improving mental health processing vis-a-vis firearm eligibility — and that too might have resulted in flags on Kelley in a NICS check. We don’t know what the contents were of any records on him (nor will we, given privacy laws). But since he was at a mental health treatment facility in 2012 while awaiting his court martial for domestic assault — and given other details that have come out about his behavior — it’s quite possible that the Air Force, and perhaps the state of New Mexico, had information about him that a judge would have agreed was disqualifying.
Grassley-Cruz specifically addressed (a) giving federal agencies better guidance on the use of mental health records in relation to firearm eligibility; (b) requiring federal court information (which would include military courts martial) to be made available to NICS; and (c) assisting the states in properly reporting relevant mental health records to NICS. Each one of those measures probably applied directly to Devin Kelley’s case.
When Cruz wrote his op-ed in May 2013, the Senate had blocked Grassley-Cruz 52-48 (a procedural vote preventing it from coming to the floor) a couple of weeks before. The bill actually attracted nine Democratic supporters, but the procedural block meant it would not come to a final vote.
As Cruz noted in his opinion piece, the better-known Manchin-Toomey bill that was also blocked at the same time had no provisions to strengthen the application of sensible, existing laws. Instead, it would have expanded background checks to include private sales between individuals — people who aren’t gun dealers — and would effectively thereby have put in place the information for a national gun registry. (It’s worth noting that such an expansion would have been irrelevant to the mass shooting at Sandy Hook and the ones since. The guns used in the mass shootings have been acquired through licensed dealers, with background checks for each one.)
Looking at the outline of Grassley-Cruz, I think it’s fair to say that its effectiveness would have depended on how well it was implemented. But it’s also fair to say, as Cruz did on Monday, that the bill addressed exactly the system shortfalls that Kelley was able to take advantage of to buy guns through a licensed dealer.