[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
 LETHAL LOOPHOLES; DEFICIENCIES IN STATE AND FEDERAL GUN PURCHASE LAWS
=======================================================================



                                HEARING

                               before the

                    SUBCOMMITTEE ON DOMESTIC POLICY

                                  of the

                          COMMITTEE ON OVERSIGHT
                           AND GOVERNMENT REFORM

                          HOUSE OF REPRESENTATIVES

                         ONE HUNDRED TENTH CONGRESS

                               FIRST SESSION

                                 __________

                                MAY 10, 2007

                                 __________

                              Serial No. 110-9

                                  __________

Printed for the use of the Committee on Oversight and Government Reform


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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             COMMITTEE ON OVERSISGHT AND GOVERNMENT REFORM

                 HENRY A. WAXMAN, California, Chairman
TOM LANTOS, California               TOM DAVIS, Virginia
EDOLPHUS TOWNS, New York             DAN BURTON, Indiana
PAUL E. KANJORSKI, Pennsylvania      CHRISTOPHER SHAYS, Connecticut
CAROLYN B. MALONEY, New York         JOHN M. McHUGH, New York
ELIJAH E. CUMMINGS, Maryland         JOHN L. MICA, Florida
DENNIS J. KUCINICH, Ohio             MARK E. SOUDER, Indiana
DANNY K. DAVIS, Illinois             TODD RUSSELL PLATTS, Pennsylvania
JOHN F. TIERNEY, Massachusetts       CHRIS CANNON, Utah
WM. LACY CLAY, Missouri              JOHN J. DUNCAN, Jr., Tennessee
DIANE E. WATSON, California          MICHAEL R. TURNER, Ohio
STEPHEN F. LYNCH, Massachusetts      DARRELL E. ISSA, California
BRIAN HIGGINS, New York              KENNY MARCHANT, Texas
JOHN A. YARMUTH, Kentucky            LYNN A. WESTMORELAND, Georgia
BRUCE L. BRALEY, Iowa                PATRICK T. McHENRY, North Carolina
ELEANOR HOLMES NORTON, District of   VIRGINIA FOXX, North Carolina
    Columbia                         BRIAN P. BILBRAY, California
BETTY McCOLLUM, Minnesota            BILL SALI, Idaho
JIM COOPER, Tennessee                ------ ------
CHRIS VAN HOLLEN, Maryland
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
JOHN P. SARBANES, Maryland
PETER WELCH, Vermont

                     Phil Schiliro, Chief of Staff
                      Phil Barnett, Staff Director
                       Earley Green, Chief Clerk
                  David Marin, Minority Staff Director

                    Subcommittee on Domestic Policy

                   DENNIS J. KUCINICH, Ohio, Chairman
TOM LANTOS, California               DARRELL E. ISSA, California
ELIJAH E. CUMMINGS, Maryland         DAN BURTON, Indiana
DIANE E. WATSON, California          CHRISTOPHER SHAYS, Connecticut
CHRISTOPHER S. MURPHY, Connecticut   JOHN L. MICA, Florida
DANNY K. DAVIS, Illinois             MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts       CHRIS CANNON, Utah
BRIAN HIGGINS, New York              BRIAN P. BILBRAY, California
BRUCE L. BRALEY, Iowa
                    Jaron R. Bourke, Staff Director


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on May 10, 2007.....................................     1
Statement of:
    Brand, Rachel L., Assistant Attorney General for Legal 
      Policy, Department of Justice, accompanied by Stephen R. 
      Rubenstein, Chief Counsel, Bureau of Alcohol, Tobacco, 
      Firearms and Explosives....................................   125
    Sorenson, Susan B., professor of social policy and 
      criminology, University of Pennsylvania; Daniel W. Webster, 
      associate professor and co-director of the Center for Gun 
      Policy and Research, Johns Hopkins Bloomberg School of 
      Public Health; and Ronald S. Honberg, professor of social 
      policy and criminology, director of policy and legal 
      affairs, National Alliance on Mental Illness...............   154
        Honberg, Ronald S........................................   169
        Sorenson, Susan B........................................   154
        Webster, Daniel W........................................   162
    Thomas, Robyn, executive director, Legal Community Against 
      Violence; Paul Helmke, president, Brady Campaign and Center 
      to Prevent Gun Violence; and John Feinblatt, criminal 
      justice coordinator for the city of New York...............    36
        Feinblatt, John..........................................    71
        Helmke, Paul.............................................    59
        Thomas, Robyn............................................    36
Letters, statements, etc., submitted for the record by:
    Brand, Rachel L., Assistant Attorney General for Legal 
      Policy, Department of Justice, prepared statement of.......   127
    Burton, Hon. Dan, a Representative in Congress from the State 
      of Indiana:
    Letter dated May 16, 2007....................................   119
    Prepared statement of........................................    15
    Cummings, Hon. Elijah E., a Representative in Congress from 
      the State of Maryland, prepared statement of...............   185
    Davis, Hon. Danny K., a Representative in Congress from the 
      State of Illinois, prepared statement of...................    11
    Feinblatt, John, criminal justice coordinator for the city of 
      New York:
    Letter to Congress...........................................   100
    Letter to Senator Durbin.....................................    95
    Prepared statement of........................................    73
    Helmke, Paul, president, Brady Campaign and Center to Prevent 
      Gun Violence, prepared statement of........................    62
    Honberg, Ronald S., professor of social policy and 
      criminology, director of policy and legal affairs, National 
      Alliance on Mental Illness, prepared statement of..........   171
    Kucinich, Hon. Dennis J., a Representative in Congress from 
      the State of Ohio:
    July 21, 2003 Washington Post article........................   113
    Prepared statement of........................................     5
    Sorenson, Susan B., professor of social policy and 
      criminology, University of Pennsylvania, prepared statement 
      of.........................................................   157
    Thomas, Robyn, executive director, Legal Community Against 
      Violence, prepared statement of............................    39
    Webster, Daniel W., associate professor and co-director of 
      the Center for Gun Policy and Research, Johns Hopkins 
      Bloomberg School of Public Health, prepared statement of...   164


 LETHAL LOOPHOLES; DEFICIENCIES IN STATE AND FEDERAL GUN PURCHASE LAWS

                              ----------                              


                         THURSDAY, MAY 10, 2007

                  House of Representatives,
                   Subcommittee on Domestic Policy,
              Committee on Oversight and Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2 p.m. in room 
2154, Rayburn House Office Building, Hon. Dennis Kucinich 
(chairman of the subcommittee) presiding.
    Present: Representatives Kucinich, Davis of Virginia, 
Burton, Issa, and Bilbray.
    Staff present: Jaron R. Bourke, staff director; Charles 
Honig, counsel; Jean Gosa, clerk; Nidia Salazar, staff 
assistant; Auke Mahar-Piersma, legislative director; Natalie 
Laber, press secretary, Office of Congressman Dennis J. 
Kucinich; Erin Holloway, legislative assistant, Office of 
Congressman Dennis J. Kucinich; Leneal Scott, information 
systems manager; Jacy Dardine, full committee intern; Ann Marie 
Turner, minority counsel; Allison Blandford, minority 
professional staff member; and Benjamin Chance, minority clerk.
    Mr. Kucinich. The subcommittee will come to order.
    This is a hearing of the Domestic Policy Subcommittee of 
the Oversight and Government Reform Committee. Today's hearing 
will cover Lethal Loopholes: Deficiencies in State and Federal 
Gun Purchase Laws.
    We have three panels today. I will be introducing the first 
panel in a moment.
    Without objection, the Chair and ranking minority member 
will have 5 minutes to make opening statements, followed by 
opening statements not to exceed 3 minutes by any other Member 
who seeks recognition. Without objection, Members and witnesses 
may have 5 legislative days to submit a written statement or 
extraneous materials for the record.
    Good afternoon and welcome. The Domestic Policy 
Subcommittee of the Oversight and Government Reform Committee 
has come to order. I want to recognize the significant 
contributions of the ranking member of the full committee. This 
hearing is bipartisan in its conception and in its development. 
I want to thank the gentleman for his cooperation.
    Today in America, people who shouldn't get guns get guns. 
It is that simple, everybody knows that. How they get guns and 
how to prevent them from getting guns, that is not so simple. 
That is why we are here today. This hearing will focus on 
lethal loopholes and deficiencies in laws designed to prevent 
high risk individuals from buying firearms. There are other 
important reasons why America has such a high rate of gun 
violence, gang activity, inadequate provision of health 
services and cultural attitudes toward violence.
    But those issues are for another day. There are many 
Federal and State laws that have been on the books, some for 
decades, aimed at preventing certain categories of people from 
purchasing guns. The problem is that they do not function 
properly or are not properly enforced.
    In 1968, when Congress passed the Gun Control Act, it made 
a judgment that certain categories of individuals termed 
``prohibited persons'' should not be allowed to purchase or 
possess handguns or long guns because of the high risk that 
they would later use these firearms to commit crimes. 
Prohibited persons include convicted felons, illegal aliens and 
individuals with serious mental health issues. The problem was 
that it was difficult to determine which individuals fell into 
these categories when they walked into a gun dealer to buy a 
gun.
    In 1993, Congress passed the Brady Act with the goal of 
instantly checking a prospective handgun purchaser against a 
nationwide data base that would contain all information 
necessary to determine if the purchase was a prohibited person. 
To the extent the data is in the system, the background check 
works fairly well. Between 1994 and the end of 2005, Federal 
and State law enforcement performed about 70 million background 
checks and identified 1,360,000 purchasers in the prohibited 
categories, a rejection rate of 1.9 percent and over 90 percent 
of prospective purchasers got an instant response.
    But this is only part of the story, because that system is 
only as smart as the information we put into it. And a lot of 
those people the system lets through we all know should not be 
allowed to own guns, people like the disturbed young man who 
took the lives of 33 innocent people last month at Virginia 
Tech.
    We will hear testimony from the Government that the 
information in the data base, actually three data bases, 
collectively called NICS, is woefully incomplete. For some 
prohibited persons categories, there is much less than half of 
the data that should be there. And about half of the States 
don't provide the FBI with any mental health data.
    Much of the information about prohibited persons originates 
in the States and localities and they often fail to collect 
this information. If they do collect it, they don't send it in 
a usable form to the Federal Government. Why? Well, after all, 
that only hurts the States, which rely on the data where 
illegal gun purchases and gun violence occur.
    Part of it is that the current law does not obligate the 
States to report this vital information and it is difficult and 
expensive to do so. Some States have other policies that get in 
the way.
    The result is that 40 years later, 40 years after the 
passage of the Gun Control Act, individuals who are prone to 
use guns illegally are still getting guns legally. There is 
legislation currently being considered by the House Judiciary 
Committee, H.R. 297, the NICS Improvement Act of 2007, which is 
designed to remedy the States' reporting failures through a 
combination of direct funding for improving States' reporting 
systems, fiscal incentives for States' compliance and penalties 
for non-compliance. We will hear testimony that passage of this 
law would help reduce illegal firearm purchases, but that the 
law alone won't be enough.
    Even if this reporting improves, there remains the gun show 
loophole. The Brady Act's instant background check only applies 
to Federal-licensed firearm dealers and not to private sales, 
including sales by unlicensed dealers at gun shows. These 
private sales are largely unregulated and many guns involved in 
firearm violence have been traced to gun show sales. Instant 
background checks are not the only avenue to enforce gun 
control and the Brady Act.
    Federal Government enforcement is primarily the 
responsibility of the Bureau of Alcohol, Firearms, Tobacco and 
Explosives, the ATF. The ATF can investigate, inspect and 
monitor sales of licensed and unlicensed firearm dealers, 
revoke licenses or refer for prosecution dealers and purchasers 
who break the law and work with State and local law enforcement 
to prevent illegal sales.
    But there is reason to believe, including Government 
studies, that the ATF does not do its enforcement job well. 
This hearing will investigate where lax enforcement is a 
product of the AFT's lack of resources and authority and where 
the Bureau simply does not use its authority well. We will also 
hear how Federal law makes it difficult, if not impossible for 
State and local law enforcement to get data necessary to trace 
guns used in crimes back to the gun dealers that illegally sold 
them.
    In spite of these limitations, we will learn the 
unbelievable story of the efforts of New York City to fill the 
Federal enforcement void by suing out of State gun dealers who 
are the source of guns involving crimes afflicting New York 
City. In setting the suit, the federally licensed gun dealers 
located in Pennsylvania, South Carolina and as far away as 
Georgia agreed to a 3-year inspection and monitoring regime 
administered by New York City. I guess necessity really is the 
mother of invention. It fell upon a city to enforce Federal law 
because the ATF is AWOL. Kudos to New York City, which has sent 
its top official in this area to be a witness today.
    Our third panel will focus on the States. We will hear 
testimony on how some States do a better job than others. 
First, we will learn about how some States have enacted laws 
and developed internal systems designed to improve their data 
collection and reporting. Second, many States have moved into 
the vacuum of Federal regulation and have passed laws 
regulating non-federally licensed dealers and effectively 
closed the gun show loophole.
    Finally, we are going to hear about States that have passed 
purchase prohibitions beyond those required by Federal law, 
aimed at categories of individuals who have shown propensity 
for violence, including juvenile offenders and certain 
misdemeanor and domestic violence offenders. We will also hear 
from an advocate for mental health patients who cautions that 
proposals to broaden the prohibited categories for people 
undergoing mental health treatment should be grounded not on 
prejudice, but on sound science, and that these individuals 
actually pose a risk of violence.
    Moreover, we will hear concerns that these laws will not be 
crafted to serve as a disincentive to people seeking mental 
health treatment. It is possible that the States' approaches 
can reveal some best set of practices that would be adopted by 
other States or percolate up and become the Federal standard.
    But as with Federal purchase restrictions, enforcement of 
State restrictions depends on other States reporting crucial 
information. We will hear about the lack of uniformity and 
problems of coordination across the States. In Ohio law, for 
example, prohibiting a certain category of high risk 
individuals from buying handguns will not stop individuals who 
commit disqualifying offenses in other States if those States 
do not share their information.
    Finally, we can expect more from the States in the way of 
reporting, respect their sovereignty and learn from them. 
However, because the market for guns is national and State 
borders are porous for both guns and people, in the end this is 
a national problem. It is my hope that this hearing can show 
the way for the Federal and State governments, through the 
implementation of new policy or the passage of new laws, to 
close these loopholes and ultimately to reduce firearm 
violence.
    At this time, the Chair is pleased to recognize Mr. Davis.
    [The prepared statement of Hon. Dennis J. Kucinich 
follows:]
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    Mr. Davis of Virginia. Thank you. I want to thank you, 
Chairman Kucinich, for holding this hearing on an issue of 
critical importance to the citizens of every State in this 
Nation. The most lethal episode of gun violence by an 
individual in our history, the shooting last month at Virginia 
Tech, prompted many to take a critical look at Federal and 
State prohibitions against gun ownership. As a result, Virginia 
Governor Tim Kaine closed a loophole in the way the 
Commonwealth processes information on those found to pose a 
danger to the community.
    Before, only persons actually admitted to a hospital or 
residential treatment facility were deemed dangerous enough to 
be subject to the gun ownership ban. By Executive order, the 
Governor eliminated the inapt distinction in this context 
between inpatient and outpatient care to require prompt listing 
of all individuals undergoing involuntary mental health 
treatment in any setting. In issuing his order, the Governor 
correctly observed, ``The key factor should be the danger 
finding, and not whether the judicially mandated treatment is 
performed in an institution or on an out-patient basis.'' That 
is what we are here today to discuss, how best to keep guns out 
of the hands of dangerous individuals.
    The Gun Control Act of 1968 listed those who were 
prohibited from purchasing or possessing a firearm. The Brady 
Handgun Violence Prevention Act of 1993 requires that all 
federally licensed firearms dealers obtain a background check 
on potential purchasers through the National Instant Check 
System [NICS]. The NICS contains information from State and 
Federal agencies about individuals who should not be permitted 
to purchase a gun. In an ideal world, every time an individual 
prohibited under law attempts to buy a gun, a quick background 
check would prevent the purchase.
    Unfortunately, we don't live in an ideal world. In truth, 
not every State compiles and maintains an accurate list of 
those who should not have a gun. If the State's lists are 
incomplete the NCIS data are also incomplete. And not all guns 
are sold by licensed dealers. Those gaps make it possible for 
dangerous people to obtain lethal weapons.
    We hear a variety of reasons for reporting lapses and 
delays, from inadequate technology systems to privacy issues to 
costs. But we all know from sad experience, even minor 
oversights or loopholes can have major and tragic consequences. 
Some States are moving to expand and strengthen the exclusion 
criteria for gun purchases. We will discuss some of those 
proposed standards today, including juvenile offenses, serious 
misdemeanor convictions, imposition of restraining orders 
protecting other than spouses or children and a more expansive 
list of mental illness diagnoses.
    We will hear from academics and others who have studied 
evidence of a predictive connection between these and other 
factors and subsequent violence. There is no denying this is a 
complicated issue. Are we willing to include in the mental 
illness prohibition individuals who voluntarily commit 
themselves to a mental health institution? Do we tell someone 
who struggled with mental illness in his or her 20's, received 
needed treatment and has gone on to live a productive life that 
he or she cannot buy a gun 20 years later?
    Will including a broader range of mental health indicators 
discourage people from seeking treatment? Does the current list 
of prohibited acts, conditions and findings capture advances in 
psychiatric understanding and all known predilections to 
violence?
    The process of crafting additional prohibitions and 
applying them to all gun sales is not easy and no one has a 
perfect solution. Hopefully, today's hearing will help us 
better understand the questions and get closer to workable 
answers. I would just add that this violence claimed four 
victims plus the shooter, all from northern Virginia, in my 
home county. This has affected the whole community, and I 
appreciate your looking into this. I appreciate our witnesses 
being here today.
    [The prepared statement of Hon. Danny K. Davis follows:]
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    Mr. Kucinich. I thank the gentleman from Virginia.
    The gentleman from Indiana, Mr. Burton.
    Mr. Burton. Thank you, Mr. Chairman.
    We all want to keep guns out of the hands of people who 
would commit crimes of violence. There is no question about 
that. But we have to be very careful when we start messing 
around with the second amendment. And I know we are not going 
to be covering the second amendment today, but I think it is 
important that we talk about it anyhow.
    In 1977, here in Washington, DC, they put into law a 
permanent ban on all handguns and all guns in a person's house. 
Since 1977, the crime rate and the murder rate in this city has 
gone up triple, over triple, because the criminals know they 
can come into your house and you can't protect yourself.
    I had a young lady that was my secretary, she lived on the 
second floor of an apartment building about five blocks from 
the Capitol. A guy shinnied up the drain pipe and came in 
through a window she had open in the summer time and stabbed 
her four or five times. She finally got down the stairs, opened 
a door and she hit him with a pan. That is the only thing she 
could--she couldn't even have mace in her house. So we have to 
be very careful about taking away the rights of homeowners and 
individuals that would allow them to protect themselves from 
these violent criminals.
    When I got off the plane, when I first got elected to 
Congress in 1983, the cab driver was driving me down to the 
Capitol. I said, tell me about Washington. He said, oh, it is a 
great city, but the crime rate is terrible. I said, well, I 
have a permit to carry a gun back in Indiana, maybe I should do 
it here. He said, oh, you can't get a gun permit. I said, what 
are you talking about? He said, they don't allow any guns here. 
The only people who get guns are the police and the crooks. And 
he reached under his seat and pulled a .38 out and held it up 
and said, but if you want one, I can get you one in about 15 
minutes.
    So that shows you that the criminals have access to these 
weapons, and they can kill people as well as the people who 
have these mental problems. I am for keeping guns out of the 
hands of people who are going to be a problem. But we have to 
be very, very careful how we do that.
    I would like to point out one thing on Virginia Tech. That 
was a horrible, horrible crime. And we all want to make sure 
those tragedies don't happen. And we want to make sure that 
people who have mental problems or have a case history of 
violence don't get guns. And it is a very tough thing to do.
    But I would like to add just one thing to that. If one of 
those students or one of the people at Virginia Tech had the 
right to carry a weapon, do you think they might have saved 
some of those people's lives, because they could have 
retaliated against this guy? As it was, nobody had a way to 
stop him. They shut doors and he shot through the doors.
    So I would just like to say that obviously, we want to keep 
guns out of the hands of people who would pose a threat to 
society. But at the same time, we ought to realize that keeping 
law-abiding citizens from having weapons to protect themselves 
is a big, big mistake. With that, I yield back my time.
    [The prepared statement of Hon. Dan Burton follows:]
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    Mr. Kucinich. I thank the gentleman.
    I would like to start by introducing our first panel, if 
there are no additional opening statements.
    Mr. Burton. Mr. Chairman, can I submit for the record some 
statistical data I have, please?
    Mr. Kucinich. Without objection, the gentleman's submission 
is included in the record. I thank the gentleman.
    We will introduce our first panel. I would like to 
introduce Robyn Thomas, who is the executive director of Legal 
Community Against Violence. LCAV is a public interest law 
center dedicated to preventing gun violence by providing legal 
assistance to State and local governments. Before joining LCAV 
last year, she was a practicing attorney in New York City.
    Next we will hear from Paul Helmke, who has served in the 
last year as president of the Brady Campaign and Brady Center 
to Prevent Gun Violence, a non-partisan grassroots organization 
working to prevent gun violence. Mr. Helmke has served as mayor 
of Fort Wayne, IN, from 1988 through 2000. During his tenure as 
mayor, he worked to strengthen the police department and 
implement community policing. Mr. Helmke served as president of 
the U.S. Conference of Mayors in 1997 and 1998, and was a board 
member and chair of the Committee on Public Safety and Crime 
Prevention for the National League of Cities.
    The final witness on the first panel will be John 
Feinblatt. Mr. Feinblatt was appointed New York City's criminal 
justice coordinator by Mayor Michael R. Bloomberg in January 
2002. In this capacity, Mr. Feinblatt has served as the chief 
advisor on Mayor Bloomberg's Illegal Gun Strategy, which 
includes innovative enforcement strategies, new local 
legislation, and the formation of a new national coalition: 
Mayors Against Illegal Guns. Prior to his appointment, Mr. 
Feinblatt was the founding director of both the Center for 
Court Innovation, the country's leading think tank on 
problemsolving justice, and the Mid-town Community Court.
    Welcome to all the witnesses. It is the policy of the 
Committee on Oversight and Government Reform to swear in all 
witnesses before they testify. I would ask the witnesses to 
please rise and raise your right hands.
    [Witnesses sworn.]
    Mr. Kucinich. Thank you. Let the record reflect that the 
witnesses answered in the affirmative.
    I ask that each of the witnesses now give a brief summary 
of your testimony, and keep the summary to 5 minutes in length. 
Bear in mind that your complete written statement will be 
included in the hearing record.
    Ms. Thomas, you will be our first witness. You may begin.

STATEMENTS OF ROBYN THOMAS, EXECUTIVE DIRECTOR, LEGAL COMMUNITY 
 AGAINST VIOLENCE; PAUL HELMKE, PRESIDENT, BRADY CAMPAIGN AND 
 CENTER TO PREVENT GUN VIOLENCE; AND JOHN FEINBLATT, CRIMINAL 
          JUSTICE COORDINATOR FOR THE CITY OF NEW YORK

                   STATEMENT OF ROBYN THOMAS

    Ms. Thomas. Thank you very much. Legal Community Against 
Violence sincerely appreciates the opportunity to speak to the 
committee about Lethal Loopholes: the Deficiency in State and 
Federal Gun Purchase Laws.
    As you mentioned, LCAV is a public interest law center 
devoted to preventing gun violence. We were founded in 1993 
after the assault weapon massacre at 101 California Street in 
San Francisco.
    I am going to address three questions related to the 
deficiency in State and Federal gun purchase laws. First, how 
to State and Federal gun laws interact? As you mentioned, 
Federal law establishes the baseline regarding the types of 
purchasers who are ineligible to acquire firearms. Those 
categories of prohibited purchasers include felons, illegal 
aliens, those subject to domestic violence protective orders, 
and the mentally ill. Some States then expand the Federal law 
by applying broader standards to some or all of these 
categories. In addition, many States designate extra and 
additional classes of prohibited purchasers who are not found 
in the Federal law.
    The second question I will address is what are the lethal 
loopholes in the Federal system and how are States addressing 
them? First, there are numerous gaps in the Federal law that 
prohibit certain individuals from purchasing firearms. Here I 
am going to touch on two basic issues, those with mental 
illness and domestic violence offenders.
    With respect to mental illness, Federal law prohibits 
firearm purchases by those who have been involuntarily 
committed or adjudicated as mental defective. This does not 
reach individuals with a wide range of potentially dangerous 
mental illnesses. For example, a person who is voluntarily 
committed to a mental institution can still lawfully purchase a 
firearm under Federal law. Many States have broadened the 
category of mentally ill persons prohibited by including those 
who voluntarily or involuntarily are committed to a mental 
hospital.
    In the case of domestic violence offenders, Federal law 
prohibits firearm purchases by those who have been convicted of 
a misdemeanor crime of domestic violence and those subject to 
certain domestic violence protection orders. The Federal 
prohibitions leave large gaps, also allowing violent offenders 
to acquire firearms.
    For example, the protection order prohibition does not 
include those individuals who have not co-habitated with the 
person who is the subject of the restrictive order. So in other 
words, if you and I have not lived together and I am subject to 
a restraining order, I may still purchase a firearm under 
Federal law.
    More than half of the individuals who are subject to 
domestic violence protection orders fall into this category. So 
it is a large loophole in the domestic violence prohibition. 
And many States have acted to close that loophole.
    I also will address gaps in enforcement. As was mentioned, 
access to State records is a huge part of the issue with 
enforcement of the prohibited purchaser provisions. As the 
Virginia Tech incident illustrated, access to mental health and 
domestic violence records is seriously inadequate. Federal law 
does not and cannot require that States send relevant records 
to the FBI for inclusion in the NICS data base. According to 
the FBI, only 22 States voluntarily contribute mental health 
records to NICS.
    We note the legitimate concern for privacy regarding mental 
health records. However, with laws that limit the use of such 
records, this concern can be adequately addressed. Lack of 
access to State records is also a significant obstacle with 
regard to perpetrators of domestic violence. A recent study 
showed that less than 50 percent of those believed to qualify, 
even under existing Federal law, would not be included in the 
system.
    One way States can improve access to prohibited purchaser 
records is by becoming a point of contact or POC State. POC 
States can then conduct background checks through the State 
system and have access to records which include NICS 
information as well as independent State information, criminal 
history and other data bases.
    The FBI has been encouraging more States to serve as POCs. 
At the present time, only 21 States serve as POCs either for 
handgun transfers or other gun transfers. In addition, several 
POC States already search mental health records automatically 
as part of the background check system. On top of that, some 
States have decided to require reporting to mental health data 
bases. This is an important point, because it has two parts to 
it. The first is that there has to be reporting of mental 
health records and then the second is that when a background 
check is done that those mental health records are actually 
reviewed. It's the same situation for domestic violence 
offenders. It is a twofold problem that has to be addressed.
    Two other dangerous loopholes remain which I will touch on 
briefly. One is the so-called default proceeds provision. What 
this refers to is the instance when a background check is done 
and it is incomplete after 3 days. The gun automatically 
default proceeds to the requested purchaser.
    Approximately 3,000 or 4,000 guns per year proceed this 
year and then later have to be reacquired, when it is found 
after the 3-day period has passed that the person should not 
have passed the background check. Many States have posed this 
loophole in a variety of different ways, from including the 
length of time to not allowing a transfer if the background 
check is not completed.
    The final loophole that I will mention is something that 
has already been mentioned, the private sale loophole. Forty 
percent of the guns transferred in this country take place 
through private sales which are not subject to any background 
check at all. So until unlicensed sellers are also regulated by 
the background check system, this will continue to remain an 
avenue for a huge quantity of the guns that are sold in the 
marketplace.
    I would just like to close by adding that H.R. 297 that the 
Congressman mentioned is a good step in the right direction, 
something that encourages States to report records to NICS and 
that begins to address the problem of the lack of information. 
It is a step in the right direction, but there are many other 
issues that need to be addressed, and we hope that this hearing 
will be a beginning of addressing some of these.
    Thank you very much.
    [The prepared statement of Ms. Thomas follows:]
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    Mr. Kucinich. Thank you very much, Ms. Thomas.

                    STATEMENT OF PAUL HELMKE

    Mr. Helmke. Thank you, Chairman Kucinich, Ranking Member 
Issa, Congressman Davis and fellow Hoosier, Congressman Burton, 
Mr. Bilbray.
    I come to you as the recipient of two NRA marksmanship 
awards from grade school, a lifelong Republican, born and 
raised in Indiana, where as you indicated, I was the mayor of 
Fort Wayne for three terms.
    I am also here as the president of the Brady Campaign and 
Brady Center to Prevent Gun Violence, the Nation's largest 
organizations working for reasonable gun policies.
    I don't see a contradiction. The proposals I recommend are 
common sense, simply common sense. They should appeal to most 
Americans across party and geographic lines and can help make 
our communities safer. I have submitted my written testimony, 
so I will just address a few points quickly here.
    We have an epidemic of gun violence in this country. Every 
year in America, almost 30,000 people are killed by gunfire, 10 
times the death toll of 9/11. About 32 people are murdered 
every day with guns. That is a Virginia Tech massacre every day 
in this country. And for every death, there is another two or 
three people that are seriously wounded.
    In recent years, violent gun crime has spiked, increasing 
almost 50 percent from 2004 to 2005, the largest increase in 14 
years. What are we going to do about it?
    What we are doing now to prevent gun violence clearly is 
not working. We need to plug the lethal loopholes in our laws. 
There are many things we should do, but let me just touch on a 
few.
    No. 1, we need to make sure that the Brady background 
system is effectively applied. The Virginia Tech killer was 
prohibited from buying guns under Federal law, since a court 
had found him to be a danger to himself or others as a result 
of mental illness. Unfortunately, Virginia did not provide such 
orders to their State police, so the killer passed a background 
check and bought his guns. Effective Brady background checks 
with access to all relevant records would have stopped those 
sales.
    According to the FBI, in 28 States, no relevant mental 
health orders are made available for background checks, so many 
people can buy guns, even though they are prohibited by Federal 
law. We need to close that lethal loophole.
    The NICS Improvement Act, introduced by Carolyn McCarthy as 
H.R. 297, is a necessary step. This legislation would provide 
grants and other incentives to encourage States to forward all 
relevant records on people prohibited from possessing firearms 
to the Federal National Instant Criminal Background Check 
System. Had it been law, the Virginia Tech shooting may have 
been averted.
    Now, there has been a great deal of misinformation about 
the effect of gun laws on those being treated for mental 
illness. I would like to set the record straight. Under 
existing Federal law, you will not be denied a gun simply 
because you have sought treatment for or been diagnosed with a 
mental illness. Existing Federal law prohibits from buying guns 
only those mentally ill persons who have been adjudicated by a 
``lawful authority,'' such as a court, to be a danger to 
themselves or others as a result of mental illness, who lack 
the mental capacity to manage their own affairs, as well as 
persons who have been involuntarily committed to a mental 
institution.
    Further, no one accesses your medical records in a 
background check. The only records entered into the Federal or 
State data bases are relevant court or other orders indicating 
that you fall into a prohibited category. When anyone is denied 
a gun purchase because they fail a background check, the gun 
dealer simply gets back a ``denied'' message, with no 
information as to why the person is denied.
    So Federal gun laws create no disincentive for people to 
seek mental health treatment or obtain a diagnosis. But the 
Virginia Tech massacre provides another reminder that those who 
are dangerous because of mental illness should not be allowed 
to buy guns.
    Second point I want to address: we must be sure that no 
guns are sold without a background check. As Congressman Davis 
pointed out, incredibly, current Federal law allows people 
without a Federal license to sell guns without a background 
check, so long as the seller is not ``engaged in the business'' 
of selling guns and the buyer is from the same State. We need 
to close this loophole by passing the Gun Show Loophole Closing 
Act of 2007, introduced as H.R. 96 by Representative Castle 
from Delaware, co-sponsored by Representatives McCarthy and 
Shays.
    No. 3, we must give law enforcement the tools and resources 
it needs to fight gun crimes, including illegal gun trafficking 
and corrupt gun dealers. Studies have shown, as you indicated, 
Mr. Chairman, that 1 percent of gun dealers sell almost 60 
percent of crime guns. Yet we tie law enforcement's hands. We 
put blinders on them and we give special protections to corrupt 
gun dealers who supply these criminals.
    Law enforcement must have all the information it needs. 
Congress must eliminate appropriation riders to ATF's budget, 
the so-called Tiahrt amendment, that shields important gun data 
and makes it uniquely exempt from the Freedom of Information 
Act. We need to eliminate other restrictions that make it 
harder for law enforcement to crack down on corrupt dealers. 
Law-abiding gun dealers do not need special protections, and 
corrupt dealers don't deserve them. There are a number of other 
loopholes that we hope will be addressed in the future: the 
fact that there is no limit on the amount of guns you can buy 
and the size of the arsenal you stock, the fact that the 
terrorists can be on the terrorist watch list and they are not 
prohibited from purchasing guns currently, the fact that 
weapons of war are often available for purchase.
    But all the loopholes we have been talking about today are 
law and order proposals. They will not prevent law-abiding 
citizens from having guns in their home if they choose; they 
will not cost a single sportsman a day of hunting season. They 
are supported by law enforcement and by most Americans.
    Too many of our neighbors are experiencing the same pain 
experienced by the Virginia Tech victims and their families 
every day. I ask Congress what we should all be asking: what 
are you going to do about it?
    Thank you for having this hearing. Thank you for addressing 
the issue. You show that you are not silent on guns, and I 
appreciate that. Thank you.
    [The prepared statement of Mr. Helmke follows:]
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    Mr. Kucinich. Thank you, Mayor.
    Mr. Feinblatt.

                  STATEMENT OF JOHN FEINBLATT

    Mr. Feinblatt. Good afternoon. Thank you, Mr. Chairman, 
Ranking Member Issa and distinguished members of the 
subcommittee.
    I am here to talk about crime control, not gun control. As 
Mayor Michael Bloomberg's Criminal Justice Coordinator, I serve 
as the mayor's chief advisor on criminal justice policy. 
Controlling crime is my chief concern, and I can assure you 
that it is an absolute top priority for the mayor.
    I am proud today to represent a city that has made enormous 
strides combatting crime. According to the FBI, New York City 
is the safest big city in America. In New York City, the crime 
rate has dropped 21 percent since Mayor Bloomberg took office. 
Already this year, homicides are down 23 percent compared to 
the same period last year, and shooting incidents are down 16 
percent.
    Unfortunately, the national crime story isn't so bright. 
After years of decline, crime rates are now on the rise across 
the country. A recently released study by the Police Executive 
Research Forum shows that homicides are up 20 percent while 
aggravated assault with a firearm has increased by 30 percent 
since 2004. This alarming trend is one of the reasons why 
mayors across the country are working together to combat the 
flow of illegal guns into their cities.
    One year ago, in April 2006, Republican Mayor Michael 
Bloomberg and Democratic Mayor Tom Menino of Boston invited 13 
mayors to join in a conversation about the scourge of illegal 
guns. That initial group of 15 mayors has grown into the Mayors 
Against Illegal Guns Coalition, comprised of more than 225 
mayors from more than 40 States, representing over 50 million 
people. At the Federal level, this coalition has one priority 
and one priority only: to repeal the Tiahrt Amendment 
restrictions on crime gun trace data.
    Let me be clear about what data we are talking about here, 
because this data is about only one thing, and that is guns 
recovered in crimes. It is not about any sort of wholesale 
access to the sale records of lawful gun owners.
    Why do mayors oppose the Tiahrt Amendment? It is simple. 
Their police chiefs are telling them that the Tiahrt Amendment 
makes them do their jobs with a blindfold on. Despite the 
lessons we learned on the tragic days surrounding September 
11th, the Tiahrt Amendment prevents police from connecting the 
dots.
    There are four principal restrictions of the Tiahrt 
Amendment. One, it restricts access to aggregate crime gun 
data, which means cities can't look at trends and patterns. 
Two, it blocks access to data from other cities and States, 
which means the police can't get a regional picture of where 
the illegal guns are flowing from. Three, it prevents cities 
from using gun trace data to hold accountable the few dealers 
who break the law. And four, it stops the ATF from producing 
national reports, which prevent all of us from getting a full 
picture of how guns move into the illegal market. This makes no 
sense.
    Every year, Congress has made the Tiahrt Amendment more and 
more restrictive. This year, the Justice Department and the 
White House seem determined to make these restrictions even 
worse. As Mayor Bloomberg wrote to Attorney General Gonzalez on 
May 3rd of this year, ``Your Justice Department has submitted 
an appropriations request to Congress that not only largely 
retains the Tiahrt language, but makes it even worse, adding 
provisions that would require police officers to certify the 
reasons for their use of trace data, which could result in 
criminal prosecutions of police officers.''
    The gun lobby has put forward two main talking points in an 
attempt to support its defense of the Tiahrt Amendment. Neither 
stand up. First, they claim that the restrictions protect 
undercover law enforcement officers. But they have not 
documented a single case of an undercover officer being exposed 
by the release of trace data prior to the enactment of the 
Tiahrt Amendment.
    Second, they argue it will subject gun dealers to undue 
harassment. But the truth is that 85 percent of dealers have no 
crime gun traces in a given year and as you have heard before, 
1 percent of the dealers account for nearly 60 percent of the 
traces.
    Our coalition of 225 mayors knows the gun lobby's claims 
are false, and so do the 10 national law enforcement 
organizations, the more than 20 State and regional law 
enforcement organizations and the more than 185 individual law 
enforcement executives who have written to Congress to oppose 
the Tiahrt Amendment. Some ask, why are the mayors taking the 
fight against illegal guns into their own hands? It is because 
the Federal Government has so clearly dropped the ball.
    By their own admission, ATF is not up to the task. 
According to the Department of Justice Inspector General, in 
fiscal year 2002, ATF revoked or refused to renew just 2.8 
percent of the licenses of dealers who were found to have 
violations, even though those dealers had an average of 70 
violations each. And just 3 days ago, ATF's chief public 
affairs officer told Time Magazine that at the current rate of 
inspections, it would take 17 years to inspect all existing 
licensed firearm dealers.
    It is the Federal Government's failure to enforce the laws 
on the books that has forced New York City and others to act. 
Ninety percent of guns recovered in crimes in New York City 
come from out of State. That is why New York City initiated 
lawsuits against 27 gun dealers from 5 States last year. In 
each of these 27 cases, we sent in undercovers and caught the 
dealers in the act of completing illegal ``straw'' purchases. I 
am pleased to report that 12 of the 27 dealers have now settled 
out of course, and agreed to unprecedented oversight of their 
firearms sales.
    Having spoken to countless mayors, countless prosecutors 
and countless police, there is only one way to interpret what 
Congress did when it enacted the Tiahrt Amendment: it chose to 
protect the privacy of criminals over the lives of police 
officers. If this Congress is serious about getting tough on 
crime, then it will repeal the Tiahrt restrictions and help 
State and local enforcement combat illegal guns.
    Thank you.
    [The prepared statement of Mr. Feinblatt follows:]
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    Mr. Kucinich. Thank you very much, Mr. Feinblatt.
    I just want to indicate how we are going to proceed. There 
is a vote on, and the ranking member, Mr. Issa, has requested 
time at this moment. So I will yield to him, then after that, 
we are going to take a break for the votes. It could be about 
45 to 50 minutes. I would ask the panel to remain for 
questions.
    So at this time, the Chair will yield to Mr. Issa.
    Mr. Issa. Thank you, chairman.
    I apologize for not having been here at the beginning to 
make my opening statement. We were unavoidably delayed in a 
piece of conference business, as we call it, a vote within the 
committee.
    Mr. Chairman, I want to thank you for holding this hearing 
today. I have forwarded a letter that objects to some aspects 
of this committee hearing not being as full and complete as I 
would like it to be. However, it is very clear that at a 
minimum, we will receive a good cross-section of some of those 
legitimate loopholes that exist, particularly the mental 
illness fail to implement that has clearly, clearly played a 
part in the tragic deaths of 32 at Virginia Tech.
    Moreover, it is very clear that Congress does have a 
continued role in working with the States to see that the full 
intent of Congress, not just under the Brady Bill, but under 
all our prior legislation, is implemented. I happen to come 
from California, a State that is known for tough gun laws. But 
even there, I want to commend, and this doesn't often happen 
these days, Attorney General Alberto Gonzalez for the fact that 
he repeatedly insisted that in California Federal gun laws be 
enforced even in a State with some of the toughest gun laws. 
That Federal U.S. Attorney arm is extremely important. If 
anything, although the President made it a top priority, it 
needs to be an even higher priority.
    We cannot stand behind the second amendment, which I do 
very strongly, if in fact we will not ensure that those who 
legitimately should be denied the right to keep and bear arms 
are in fact denied that. I look forward to this hearing. I have 
a strong view that we should have at least one followup hearing 
in which some of the people who strongly support the second 
amendment and strongly support that we do not need additional 
laws are given an opportunity to make their case of how we can, 
in fact, with the existing laws, enforce sufficiently to make 
those who should not have guns not have guns.
    I believe that the firearm laws need to be looked at 
carefully. But most importantly, I look forward to our 
witnesses giving us the insight into the lack of enforcement 
that has led to many tragedies around the United States.
    With that, Mr. Chairman, I will put the rest of it in the 
record, with unanimous consent. Thank you. I yield back.
    Mr. Kucinich. Without objection, the gentleman's statement 
and letter is included in the record. I thank the gentleman 
very much for his presence and for his testimony.
    At this time, the Chair is going to declare a recess until 
I would say about 50 minutes from now, we will come back. We 
will ask the witnesses if they will remain or be back here in 
50 minutes, so that we can go to questions.
    Thank you very much.
    [Recess.]
    Mr. Kucinich. The Domestic Policy Subcommittee will resume.
    Our hearing today is on Lethal Loopholes: Deficiencies in 
State and Federal Gun Purchase Laws.
    We are now at the point where we are going to ask the first 
panel to answer questions. I would like to begin by asking both 
Ms. Thomas and Mr. Helmke: Without closing the gun show 
loophole, is there anything else that can be done that helps 
prevent prohibited persons from getting guns, or does reform 
just divert individuals to unregulated private sales, 
individuals who are now in NICS?
    Ms. Thomas. I think as has already been discussed by 
members of the panel, there are so many areas in which you can 
begin. I think it can begin with closing some of the ways in 
which these categories are defined, whether it's mental health 
prohibition or domestic violence offender prohibitions. So at 
the State level that can be done, and certainly as well as at 
the Federal level. Both of those things wouldn't entail closing 
the private sale loophole, but would entail shoring up 
prohibitions that already exist.
    Secondarily to actually impacting those provisions, there 
are other categories of purchasers who are not prohibited. For 
example, domestic violence juvenile offenders are not 
prohibited under Federal law from acquiring firearms. That is 
something that might need to be looked at, as to whether there 
is a way to implement that into this. Certainly many States 
already have created prohibitions around particular categories 
that aren't covered by the Federal law.
    Then last, going back to the State recordkeeping and the 
way in which that is transferred to the Federal level. Right 
now you do have Sates that report very well up to the NICS 
system and the FBI. That is very helpful, especially as the 
chairman mentioned, with regard to our porous borders. If in 
California, we have very good recordkeeping for mental illness, 
and I am in the system, but I move to another State, say 
Nevada, and California doesn't report to the FBI or NICS, 
therefore in Nevada, they won't have access to that 
information.
    So I think there are ways in which the data can be 
transferred that would be extremely helpful to shoring up some 
of these problems.
    Mr. Kucinich. Mr. Helmke.
    Mr. Helmke. The question usually comes to me in terms of, 
well, the bad guys don't follow the rules, so why should we 
make rules. And I think if we analyze this, the guns come from 
some place. And we don't want to make it easy for dangerous 
people to get guns. That is why we have the 1968 Gun Control 
Act. That is why we have the Brady Bill, to do a check to make 
sure that prohibited purchasers, we don't rely on the 
prohibited purchaser filling out the form. We check to see what 
the records are.
    So again, the first thing we need to do is to make sure 
that we are strengthening the Brady Bill, that we get good 
information into the system from the States as to felons and 
other prohibited purchasers. That is the first crucial part. 
Then we need to make sure, I think, that the Brady background 
checks are applied to all sales, that the so-called gun show 
loophole, the private seller exception that we talked about.
    But then we have to focus on the thing that Mr. Feinblatt 
talked about, and that is that guns do get in, criminals do 
pick up guns illegally. But where do those guns come from? And 
when you talk to police chiefs around the country, when you 
talk to mayors around the country, most guns that are used in 
crimes, it has been a fairly short period of time that it has 
come from a legitimate gun dealer to the street. It is not old 
guns we are seeing used in crimes. Most guns that are used in 
crimes are 2 to 3 years old. They have come fairly quickly from 
the legitimate market to the criminal market. How does that 
happen?
    That is one of the reasons that we focus on Tiahrt. We need 
to find out where the guns are coming from. Once you find where 
they are coming from, then you can develop strategies to make 
it harder, strengthening ATF, dealing with the bulk sales of 
guns.
    Mr. Kucinich. And this goes to the issue of the 
completeness of the data in the NICS. So the following, 
including all the Federal prohibited persons categories, what 
is the percentage of data that has been entered into the NICS 
data base in a form that can be used by the Brady background 
check, for example?
    Mr. Helmke. The States have done a very good job in terms 
of felony records. Where the States haven't done a very good 
job are with regard to the other categories. This deals with 
those who are a danger to themselves or others because of 
mental illness. It is a category that people put in the NICS 
index, is what they call it.
    But for example, in terms of people who are considered a 
danger to themselves or others because of mental illness, the 
mental illness category of prohibited purchaser, there are only 
about 235,000 names entered into that record. I have seen some 
estimates that are at least 2.6 million people 
institutionalized involuntarily in this country. That means 
there is a disconnect between the mental health records that 
are getting in there and the number of people that would 
actually be a prohibitive purchaser.
    Mr. Kucinich. So if you had a complete NICS data base, that 
would include, let's say, 1,000 pieces of information or 1,000 
pieces of data, and NICS had access to only about 500, what 
would you say? Could you give a quantification, that you just 
said 235,000 of 1.2 million?
    Mr. Helmke. And these are estimates, because we don't have 
complete records.
    Mr. Kucinich. Can you give me a rough estimate, percentage?
    Mr. Helmke. In terms of the mental health records, in terms 
of a disqualifying mental illness, findings that someone is 
dangerous to themselves or others, a prohibited purchaser, it 
is probably just 10 percent of the records. Virginia actually 
is one of the better States in terms of reporting records. They 
have reported about 80,000 instances.
    Mr. Kucinich. That is in mental health records?
    Mr. Helmke. That is criminal health records.
    Mr. Kucinich. What about criminal conviction data? Is it 
just as problematic?
    Mr. Helmke. Well, particularly when you look at 
misdemeanors, dealing with the domestic violence area that Ms. 
Thomas talked about, again, the States do a pretty good job, 
because they have computerized most of their felony records. 
When you get into misdemeanors, when you get into restraining 
orders, when you get into the mental illness disqualifying 
records, it is basically hit or miss whether the State has 
given you anything at all.
    Mr. Kucinich. I am going to come back, to that line of 
questioning, but it is now time for Mr. Burton, if he so 
chooses, to ask questions. Mr. Burton.
    Mr. Burton. Thank you, Mr. Chairman.
    I am concerned about, you are advocating, I guess, that the 
Federal Government demand of the States that they provide 
adequate records. That is essentially what you want to do, 
right?
    Mr. Helmke. In 1968, the Federal Government said that 
certain people were prohibited purchasers and declared as a 
policy that those people were dangerous people who should not 
be getting guns. So we are trying to figure out, how do we turn 
that statement of who is a prohibited purchaser into an 
effective enforcement tool.
    Mr. Burton. Are you advocating that there be Federal 
records kept, that the States are required to send these 
records to Washington, DC, and that make sure we keep track of 
them through the Federal Government?
    Mr. Helmke. Currently, States have a choice. They can be 
what is called a point of contact State, and I think there are 
22 or so of those?
    Ms. Thomas. About 20.
    Mr. Helmke. About 20 of those now where they handle the 
records on their own. There are other States who decide they 
don't want to handle that, and they send it to the Federal 
Government. So right now the States have a choice.
    Mr. Burton. I understand, but if the States don't comply 
with the things they way you think they should, then you feel 
the Federal Government should force them to do that?
    Mr. Helmke. Well, actually, Carolyn McCarthy's bill, the 
NICS Improvement Act, wouldn't be forcing them to.
    Mr. Burton. What does it do? How do you enforce it if it 
doesn't force the States to comply?
    Ms. Thomas. If you don't mind, I don't think it is about 
enforcing. In fact, I think there are issues as to whether it 
could actually be enforced on the States. I don't believe that 
is an approach that would be appropriate under the way that our 
system operates under the tenth amendment. I do think that is 
he is talking about, there are ways to encourage and give 
incentives.
    Mr. Burton. So you are talking about encouraging the 
States. Well, I think the States right now, for the most part, 
really want to keep the guns out of people's hands that 
shouldn't have them. I don't know how this legislation is going 
to improve that. You are just suggesting, we want you to do 
better?
    Ms. Thomas. There are financial incentives included in the 
legislation that I believe would be----
    Mr. Burton. OK, I want to get to that. Financial 
incentives. So we are going to have the Federal Government in 
effect mandating through financial incentives to the States to 
do certain things?
    Ms. Thomas. Paul, you can correct me if I am wrong. My 
understanding is one of the things that the McCarthy Bill does 
is to provide the financing that some of the States might need 
in order to help them, to enable them to computerize records 
and to bring some of these records up to speed.
    Mr. Burton. OK. I think your goals are laudable. But let me 
just tell you, in Indiana there have been incentives to create 
more policemen. And the Federal Government has put money into 
the program to create more policemen to cut the crime rate.
    Then the Federal Government, after they hire the policemen, 
a few years later, don't continue to comply and fund those 
mandates. So you have a situation there where you get into this 
thing, then you have the Federal Government who is supposed to 
pay for these things as an incentive, then they drop the ball. 
I want to tell you, that happens an awful lot. You being a 
mayor, you know about unfunded mandates.
    I don't have a lot of time, so I want to go into some other 
questions. You said that there should be background checks, Mr. 
Feinblatt, on people that are selling guns person to person, 
right?
    Mr. Feinblatt. No, I did not.
    Mr. Burton. Explain that to me again.
    Mr. Feinblatt. I did not discuss background checks, 
Congressman.
    Mr. Burton. You said people selling a gun to another 
person.
    Mr. Feinblatt. I didn't discuss that. The only thing that I 
commented on today is the Tiahrt Amendment, which restricts law 
enforcement.
    Mr. Burton. I must have mis-understood.
    Mr. Helmke. I talked about that.
    Mr. Burton. I thought you said----
    Mr. Feinblatt. I think it was Mr. Helmke.
    Mr. Burton. Well, somebody, I thought it was you, said that 
there should be background checks on a person to person basis, 
is that right?
    Mr. Helmke. As I indicated, the Brady background check 
system isn't going to fully work if 40 percent of the sales of 
guns aren't covered by the Brady background check system. If 
the requirement was that private sales, if private sales were 
covered, that if you got the unlicensed seller exception out of 
the way, where people can go to a gun show, go to the desk that 
is set up, say, I am an unlicensed dealer and therefore I can 
sell you the guns without the background check, that would help 
our system work.
    Mr. Burton. The enforcement of that, I think, would be 
virtually impossible. Because you get so many people who have 
guns and so many people that sell them to other people or give 
them to other people. Now, there is a liability statute, as I 
understand it, that says if you give a gun or sell a gun to 
somebody else and they commit a crime, you have a 
responsibility and you can be sued. So I think we already have 
a deterrent.
    I want to ask one more question. I have a friend, and I 
won't go into the details, he and his wife are getting 
divorced. She was running around with another guy and he was 
crushed. He has a couple of kids, and it is really a problem. 
As a result, he wanted to make sure that he did the right 
thing, so he went for counseling, went to a mental health 
center for counseling. The counseling worked, he went to his 
church, that worked. He is now in good shape and he is not any 
threat to his wife or anybody else, because he has learned to 
cope with it.
    But the mental health record of this man would be a 
deterrent for him getting a gun, would it not?
    Mr. Helmke. No.
    Mr. Burton. Why not? Because there will be a record of it, 
won't there?
    Mr. Helmke. No. As I indicated, it only deals, the Federal 
law and the implementation of who is defined as a prohibited 
purchaser only deals with someone who has been involuntarily 
committed or someone who has been adjudicated by a court as a 
danger to themselves or others because of mental illness. Going 
for marital counseling, getting that sort of voluntary 
treatment, therapy, medication, whatever, as long as you are 
not in front of a judge or someone who has that official 
capacity, then it doesn't show up in the records.
    Mr. Burton. Brian and I were talking a minute ago, and he 
may want to pursue this question further. Are the mental health 
agencies in favor of what you are trying to do?
    Mr. Helmke. They are represented here, I believe, with 
another panel. We have been talking to them. We don't want a 
stigma on mental health. We want people to go in for mental 
health question.
    Mr. Burton. That is not my question, Mr. Mayor. My question 
is, the mental health organizations, are they in favor of what 
you want?
    Mr. Helmke. I can't speak for them. But I believe based on 
our discussions that we can reach agreement here. They agree 
that individuals that are a danger to themselves or others 
because of mental illness should not be purchasing guns.
    Mr. Burton. Thank you, Mr. Chairman.
    Mr. Kucinich. I thank the gentleman.
    The gentleman from California.
    Mr. Bilbray. Thank you very much.
    Mayor, seeing that we are stringing you out right now, 
let's not interrupt the pace.
    Mr. Helmke. I am used to it. [Laughter.]
    Mr. Bilbray. I appreciate it. I was a mayor for 6 years. 
When I started off, I was 27 years old. It was rather an 
interesting situation to lead a city at that age that you had 
grown into. Half of the staff and police chief used to change 
my diapers before I was in there. [Laughter.]
    But I would say, in fact, I remember, that was the day you 
were in Cleveland. There were three of us, the new politicos.
    Mr. Kucinich. We all have something in common here.
    Mr. Bilbray. Ancient history.
    Let's talk about the gun show issue. Mayor, when is the 
last time you went to a gun show?
    Mr. Helmke. Four years ago, I guess.
    Mr. Bilbray. Now, you said 40 percent of the sales of guns 
are not regulated at this time?
    Mr. Helmke. It is estimated. Since we don't keep records on 
that, it is just an estimate.
    Mr. Bilbray. Is that 40 percent of what you are estimating, 
is 40 percent are being sold through gun shows?
    Mr. Helmke. It is not just gun shows. It is private sales. 
So it could be gun shows, it could be classified ads, it could 
be neighbor to neighbor.
    Mr. Bilbray. What percentage do you think is being sold 
through gun shows unregulated?
    Mr. Helmke. I don't have any hard data on that.
    Mr. Bilbray. What percentage of the gun shows sales do you 
think is unregulated?
    Mr. Helmke. The 40 percent figure, I am under oath here, so 
I am just guessing at this stage. I have seen the 40 percent 
figure. I have seen others who say that at gun shows maybe it 
is 25 percent of the total sales or something like that.
    Mr. Bilbray. Then, boy, it definitely is not the gun shows 
that I have seen around. The fact is, I would challenge 
anybody, and I have had the NRA attack me on positions, I have 
had Brady support me on issues, but I think what we need to 
keep grounded is, the overwhelming majority of people who are 
engaged in gun shows are professionals who are licensed. Very 
few, very few, and I guess in my mind I remember the son, the 
12 year old son and the man selling the black powder rifle with 
spare barrels, and I remember, because I don't shoot modern 
firearms. I am exempt from all these rules. I can go buy my 
musket and my cap and ball and get anything I want over the 
counter.
    But to imply that gun shows pose a major threat, when our 
big exposure here, our big source of unsupervised purchases I 
think doesn't reflect the fact that the overwhelming majority 
of people at gun shows are licensed dealers who are functioning 
under that vehicle.
    Now, if we can just say, you guys want to take a shot at 
that, I have some real problems with you eliminating the deal 
that most of the people that are dealing, most firearms sold 
under the gun show process is under some kind of regulatory 
deal. Counter my argument if you want to.
    Mr. Helmke. First of all, California does require 
background checks at gun shows. So if you are going to gun 
shows in California, yes, they do background checks, because 
that is a State law and that has been effective in reducing the 
amount of guns that get into the illegal market in California.
    Mr. Bilbray. But the issue was not the background check. It 
was the person, the regulations that were imposed on the people 
that are actually selling the firearms.
    Mr. Helmke. Right. In California, if you are an unlicensed 
dealer, the way it works in California is, if you want to 
purchase from the collector, they then take the form to the 
licensed dealer who is in the booth next door, and for a $5 fee 
or whatever, they run the instant check and come back with a 
you are approved type of thing. So in effect, the so-called gun 
show loophole has been closed in California and they do do the 
background checks.
    Mr. Bilbray. The point I was making, though, and Ms. 
Thomas, if you want to go over it, you still are bound to this 
issue that the overwhelming majority of people engaged in the 
sale of firearms at gun shows are licensed dealers.
    Mr. Helmke. Most are. And actually, part of the point, 
though, even in the statistics, most of the licensed dealers do 
a good job. It is only 1 percent of the dealers that contribute 
60 percent of the guns.
    Mr. Bilbray. My point was that the fact that the perception 
that this is an unregulated, no oversight, that it is a great 
majority of moms and pops giving the sales, and let me just 
say, you have been a mayor. I would really ask you the 
question: the ability of Government learning just not to over-
reach, the ability of taking a theory and making a practical 
application, the ability for even a local government, let alone 
a Federal Government, to regulate one on one sales between 
individuals, and I give you an example. We don't do a very job 
at regulating those who are buying and selling cars under the 
law as a dealer, a car dealer. If we can't regulate the buying 
and selling of cars under that, what makes you think we can do 
it with firearms?
    Mr. Helmke. But we still have laws dealing with the sale of 
cars, and you still have the licenses and you still have the 
process that it goes through, the State Bureau of Motor 
Vehicles, whatever, to get the license transferred and collect 
the sales tax.
    Mr. Bilbray. Mr. Helmke, my point being, even with the laws 
on the books, we admit that those of us in Government--the 
crucial, huge problem to try to enforce the sale of 
automobiles, something you are registering, something you are 
putting on the street, something that is pretty big that you 
are not going to put in a box and take home, if you are talking 
about now something that can go into a box and be taken home, I 
just want to raise the issue of what a huge, huge leap in 
practical application we have to make here. That was just my 
point.
    Mr. Helmke. I think the whole point with this discussion of 
guns is what we are doing now is not working. We need to find 
things that just don't sound good in law but are actually going 
to be effective. That is what I am trying to say. We make it 
too easy for dangerous people to get the weapons.
    Mr. Bilbray. And I am just saying, the big thing is what is 
effective is more important than what sounds good.
    Mr. Bilbray. I agree totally. I yield back.
    Ms. Thomas. If I can just add one thing. As you mentioned, 
if you are talking about federally licensed firearms dealers, 
who are the ones at the gun shows, and if they are running 
background checks, and if you are a law-abiding gun owner, you 
know that the Federal instant background system is incredibly 
quick and efficient. It is not very burdensome. It is something 
that for people who know the rules and understand how the 
system works, it is not a big deal to have this instant check 
run before they get their guns. What it does is it takes the 
difference between someone who should have a gun and is law-
abiding versus someone who shouldn't have a gun. We make sure 
that person who is at the gun show just gets that instant check 
run and we make sure they fill the category.
    Mr. Bilbray. You miss my point. My point was perception 
that this problem was a large portion of gun shows when in fact 
it is a very small part of the problem within the gun shows, 
because the overwhelming majority are already plugged into the 
registration system.
    Mr. Helmke. I did just get a clarification here. According 
to an ATF report from 1999, they estimate that 25 to 50 percent 
of gun show sellers are private parties.
    Mr. Bilbray. I would totally disagree with that.
    Mr. Helmke. I am just saying that is what the 1999 ATF data 
is.
    Mr. Bilbray. I would also point out that it is estimated 
that 1 percent of criminal guns are acquired at gun shows.
    Thank you, Mr. Chairman.
    Mr. Kucinich. I thank the gentleman. We are going to go to 
another round of questions here. Congressman Burton, can you 
wait 5 minutes?
    Mr. Burton. Sure.
    Mr. Kucinich. We are just going to go to one more round of 
questions. I would like to ask Mr. Helmke, if you have a fairly 
informed, quantitative assessment you can give us at this 
moment, fine. If you don't, I would like you to provide the 
information to the committee with respect to the completeness 
of this records on data related to prohibited persons with 
respect to criminal conviction data. Can you tell us what 
percent? And if you don't know, can you provide it?
    Mr. Helmke. It is my understanding, I will double check 
this and provide it. It is my understanding that in terms of 
felony conviction records that it is pretty close to complete.
    Mr. Kucinich. And mental health, you said 10 percent?
    Mr. Helmke. With all other disqualifiers, mental health, 
dishonorable discharges, restraining orders, outstanding 
warrants, that it is just hit or miss, and 10 percent to 20 
percent at best.
    Mr. Kucinich. OK. I want to go to Mr. Feinblatt. Could you 
tell me, why did New York City feel that it was necessary to 
bring its lawsuit against the gun dealers, I think it was 27 
gun dealers? Couldn't it just call up and request that the ATF 
do something about the flow of illegal guns into your city?
    Mr. Feinblatt. I think the problem is that the ATF is not 
keeping up their end of the bargain. As you know, I think that 
the Department of Justice in fact did a report that was issued, 
I think in 2002, which said that the ATF inspected about 4\1/2\ 
percent of the firearm licensees nationwide. So that is about 
4,500, 4,600 of the 104,000 FFLs. They found in those 
inspections that in fact 42 percent of the inspected licensees 
had violations. And we're not just talking about one violation. 
What they found was on average, the licensees had 70 violations 
each.
    Nonetheless, in the face of data like that, the ATF revoked 
or refused to renew only 2.8 percent of the licenses of dealers 
with violations.
    Mr. Kucinich. Well, wait a minute. Why didn't the ATF do 
what you did, before bringing this suit, and that is, conduct 
aggressive investigations to make sure that federally licensed 
gun dealers are not breaking the law and allowing straw 
purchases?
    Mr. Feinblatt. Why does the ATF not do it? Because the ATF 
is not committed to this as part of their mission. And there 
are several reasons why.
    Let me give you some disturbing evidence, which is even 
more disturbing than the numbers. In this same report, 
investigators interviewed ATF inspectors. What they found was 
that 78 percent of the inspectors that were interviewed said 
that when doing an inspection, they did not look for signs of 
straw purchases whatsoever. Another 67 percent of the 
inspectors said that they rarely referred information gathered 
during an inspection for criminal investigation by the ATF, 
because they actually didn't believe that the ATF would 
followup.
    So what we have now is a culture within the ATF that isn't 
taking their mission seriously.
    Now, let me tell you, it is not just the ATF. Congress 
hasn't made it any easier. As you know, Congress has in some 
ways tied the hands of the ATF. It has restricted inspections 
of dealers to once per year. It has required licensed dealers, 
it has prevented ATF from requiring licensed dealers to 
physically check their inventory against their records. It has 
prevented ATF from revoking a license until all legal means are 
exhausted, which can take years, even if they find that a 
dealer has been convicted of a felony.
    So I think that what we have is a culture of lax 
enforcement within the ATF, and I think that Congress has 
abetted that and aided that.
    Mr. Kucinich. And you are saying that with respect to the 
Tiahrt Amendment, for example, is that right?
    Mr. Feinblatt. I am saying that in effect to the 
restrictions that we placed on ATF, and the fact that the 
restrictions that we placed on local law enforcement getting 
information about crime gun trace data is just one more example 
of trying to shield the gun industry.
    Mr. Kucinich. With the Tiahrt Amendment in effect, could 
you now obtain the type of trace data that you have used from 
the ATF and use it in a civil suit?
    Mr. Feinblatt. Absolutely not. Don't even think about a 
civil suit. At least 20 States in the country have State 
licensing regulations, trace data is not admissible in those 
State regulatory hearings. So what you have is the Federal 
Government basically stopping the dam of information.
    Mr. Kucinich. Let's go then to the consent decree that New 
York worked out about the monitoring that went on, that the 
dealers settled with New York about. You had a consent decree, 
the dealers said, look, we are going to settle up with you, New 
York. What happened with that?
    Mr. Feinblatt. What we did was, we sued 27 dealers from 
five States. Already 12 of them, nearly half, have settled with 
the city of New York. We haven't looked to put anybody behind 
bars. That isn't our goal. We haven't looked to put anybody out 
of business. That certainly is not our goal.
    What the settlements require is that a special master be 
appointed to oversee the business with the cooperation of the 
FFL for a period of 3 years. If there are continued violations 
of Federal, State or local laws, the special master has the 
right to impose a penalty and if there are violations, the 3-
year clock resets.
    Mr. Kucinich. Just one final question before we go back to 
Mr. Burton, and that is from a policy standpoint, would you 
tell this committee what benefits New York City was able to 
achieve in entering into this consent decree?
    Mr. Feinblatt. The basics of law enforcement are trying to 
define who the bad guys are. Most dealers are good, honest 
businesspeople. ATF tells us that only about 1 percent of the 
dealers are responsible for 50 percent of the crime guns.
    But what trace data does is it actually pinpoints who are 
the people who are breaking the law. What New York has tried to 
do is use that trace data to actually pinpoint in a very 
precise way who is breaking the law and then come to some 
agreement with them. That is what our goal is. Our goal isn't 
to interfere with legal dealers. Our goal isn't to question the 
right of people to have guns. Our goal is plain and simple, it 
is to enforce the law.
    Mr. Kucinich. So the Federal Government kind of responded 
to this investigation and lawsuit and consent decree in a 
favorable way? Did ATF say, hey, New York, we have something to 
learn from you?
    Mr. Feinblatt. Absolutely not. What the Federal Government 
did was threaten New York City, just like----
    Mr. Kucinich. What do you mean, threaten?
    Mr. Feinblatt. Basically wrote a letter to the city of New 
York saying that, under certain circumstances, if you continue 
enforcing the law, mind you, you could be subject to criminal 
penalties.
    But what is so telling here is that we have a pattern. The 
White House, the FOP and Department of Justice has now recently 
taken the Tiahrt Amendment one step further. What they are now 
suggesting is that every single police officer, every rank and 
file police officer who wants to trace a gun, the basic thing 
that you want to do if you are trying to catch criminals and 
put them away, or try to catch traffickers, is to get data. 
What they have said is that every police officer needs to 
certify the purposes for seeking the trace data and if those 
purposes are broader than the investigation of one gun at a 
time, that somebody is liable to go to prison for 5 years.
    The real question is, who does that help and who does that 
hurt. That only helps one people, criminals. Who does it hurt? 
It hurts law enforcement. There is a basic choice here. Who do 
you want to protect? Do you want to protect cops or do you want 
to protect criminals? The city of New York wants to protect 
cops. It seems that the White House, the Justice Department and 
the ATF, by making the rank and file police officer certify the 
purposes for the request of data and threatening them with 
jail, wants to really hurt cops and help criminals.
    What is so striking about this amendment is just 1 year 
ago, the Department of Justice itself, when considering the 
idea of having police officers face criminal penalties for 
doing their job, wrote to Congress that this would have a 
chilling effect, it would be deleterious to law enforcement, it 
would chill police officers from doing their job by requesting 
key data and by sharing key data.
    Mr. Kucinich. I thank the gentleman. Whatever you have that 
you would like to submit for the record on that, I would 
appreciate it. This has gone on about, more than 9 minutes, so 
I just want to say to Mr. Burton and Mr. Bilbray, if each of 
you would like to consume 9 minutes, you are entitled to that 
each.
    Mr. Burton. First of all, let me just say that people who 
don't agree with you do support law enforcement and policemen. 
The implication of some of your remarks were that the people 
who don't agree with you aren't caring enough about the police. 
I don't think that is true. A lot of police officers around 
this country don't agree with the position you have taken. I 
don't know the percentage, but I am sure there are a lot of 
them.
    How many guns are there in America? Do you know?
    Mr. Feinblatt. I do not know. Mr. Helmke probably has that 
figure on the tip of his tongue.
    Mr. Helmke. There are estimates of around 200 million.
    Mr. Burton. Two hundred million.
    Ms. Thomas. More than that.
    Mr. Burton. You are going to keep track of 200 million 
guns? What you are talking about, Mayor Helmke, is that if 
there is a sale from one individual from another individual, 
there ought to be a background check. Two hundred million guns. 
You have to be joking.
    Mr. Helmke. We are awash with guns in this country. That is 
part of the problem.
    Mr. Burton. And to start creating a bureaucracy and making 
law-abiding citizens criminals if they sell a gun to some other 
law-abiding citizen, it doesn't make any sense to me.
    Mr. Helmke. How do they know they are a law-abiding citizen 
if they don't do a background check before they sell it. That 
is the problem. Most of the people aren't selling their guns. A 
lot are collections, a lot are handed down from their family, a 
lot they use. Many people who own have a lot of guns. While 
there are that many guns out there, there are also estimates 
that only 25 percent of the households have a gun, too, I think 
is the figure. So those guns are basically----
    Mr. Burton. You said 25 percent of the households. Where 
did you get that figure?
    Mr. Helmke. I think that is----
    Ms. Thomas. I think some of that is through the Department 
of Justice, they come out with reports. I think it might be 
cited in our testimony if you take a look.
    Mr. Burton. But it is an estimate?
    Ms. Thomas. Yes, it is an estimate. Because there is no 
system of registration of guns in this country right now. So 
all of this data is generally collected through estimates in 
the numbers that we do have.
    Mr. Burton. Let me ask you a question. You just said there 
is no registration in this country right now. Are you 
advocating registration of guns?
    Ms. Thomas. I certainly think there are ways to go about it 
that are feasible. I think that some kind of registration 
system, like we have for cars in this country, would certainly 
be helpful in knowing how many we have, knowing where they are 
and being able to understand a little better what the issue is.
    Mr. Burton. Let me just tell you, there are an awful lot of 
people, there are 200 million guns out there, there are an 
awful lot of people that are concerned about the second 
amendment and their constitutional rights. They are afraid if 
you register all guns, at some point in the future there may be 
a tyrannical government that uses the registration of those 
guns to disarm everybody in this country in violation of the 
second amendment. I see you shaking your head back there. It is 
a fact. People are concerned about that.
    Ms. Thomas. I absolutely hear what you are saying, and 
certainly a discussion of the second amendment is a very 
interesting legal argument. I would hold that the Supreme Court 
of this country, in the 200 cases that have come since Miller 
in 1939, have held that the second amendment is not a bar to 
sensible, sane, common-sense gun regulation, that those laws, 
things like background checks, have been upheld hundreds of 
times by the courts of this country.
    So the second amendment, with all respect, is not a 
prohibition on common sense gun regulations that would save 
lives.
    Mr. Burton. In the sense of gun regulations, I agree with 
you. But you are talking about registration, and that is a 
different subject. I am certainly not for that.
    Mr. Chairman, I don't think you need to ask any more 
questions.
    Mr. Feinblatt. Congressman, may I just respond to the 
comment you made? This is not an issue of whether you disagree 
with one position or don't agree with another, whether you are 
for cops or against cops. This is really an issue of whether 
you are going to threaten cops with imprisonment for doing 
their job. That is actually what the Justice Department, the 
White House and the ATF are now calling for by requiring police 
officers to certify. Everybody in the law enforcement world 
just about sees this issue for what it is. That is why 10 
national law enforcement organizations oppose the Tiahrt 
Amendment. It is why over 20 State and regional law enforcement 
organizations oppose the Tiahrt Amendment. It is why over 175 
police chiefs from around the country oppose the Tiahrt 
Amendment. And it is why 225 mayors, Republicans, Democrats and 
Independents, oppose the Tiahrt Amendment. They want cops to do 
their job.
    Mr. Burton. How many police chiefs are there in America?
    Mr. Feinblatt. There are obviously many----
    Mr. Burton. Well, how many?
    Mr. Feinblatt. I don't have the number.
    Mr. Burton. You said 175 police chiefs. I would just like 
to know what percentage of the----
    Mr. Feinblatt. I don't have the percent, but I would be 
delighted to give that to you.
    Mr. Burton. I was just given a note from my staff here. It 
says, both the BATFE and the Fraternal Order of Police oppose 
release of trace data.
    Mr. Feinblatt. It is true. The FOP----
    Mr. Burton. But you didn't say that, though. You just cited 
a bunch of people that oppose you and a bunch of groups that 
oppose you. Don't you think it is important also to say how 
many support the other side?
    Mr. Feinblatt. There is one police organization in this 
country that supports the Tiahrt Amendment. A single police 
organization. Stack that against 10 national police 
organizations, 22 State and regional organizations, 175--it is 
a lone voice.
    Mr. Burton. What is that lone voice, the Fraternal Order of 
Police?
    Mr. Feinblatt. It is the Fraternal Order of Police. But----
    Mr. Burton. The Fraternal Order of Police, the majority of 
the policemen in this country are members of the Fraternal 
Order of Police.
    Mr. Feinblatt. Yes, except that----
    Mr. Burton. You're saying one organization. But that is the 
majority of the policemen in this country. And the BATFE also 
opposes it.
    Mr. Feinblatt. The Fraternal Order of Police doesn't speak 
with one voice. I would refer you to this letter from the 
Illinois, for instance, Fraternal Order of Police, which 
constitutes 10 percent of the entire membership of the 
Fraternal Order of Police.
    Mr. Kucinich. Without objection, we will enter that into 
the record.
    [The information referred to follows:]
    [GRAPHIC] [TIFF OMITTED] 35771.064
    
    [GRAPHIC] [TIFF OMITTED] 35771.065
    
    [GRAPHIC] [TIFF OMITTED] 35771.066
    
    Mr. Burton. That is fine. What about the other 90 percent?
    Mr. Feinblatt. They are on record absolutely opposing it.
    Mr. Burton. What about the other 90 percent?
    Mr. Feinblatt. They are not alone, and I think that you 
will see many----
    Mr. Burton. What about the other 90 percent? You just said 
10 percent. What about the other 90 percent?
    Mr. Feinblatt. With all due respect, one organization, the 
Fraternal Order of Police, which has basically taken the 
position that the reason why the Tiahrt Amendment is a good 
thing is this. They have said that it does two things. It 
protects dealers from harassment. While 85 percent of dealers 
in this country have absolutely no traces, 1 percent of the 
dealers account for nearly 60 percent of the traces.
    Every police organization that represents chiefs, who look 
at crime on a macro level, not on a one at a time level, 
opposes it. So what is the other reason that the FOP says that 
we shouldn't release trace data? They say, well, it could 
expose undercover operations.
    However, when the ATF and the FOP have been asked, under 
oath, whether they can give one single example in Federal court 
of an instance where an undercover operation was compromised, 
they were unable to do it. When Todd Tiahrt was asked whether 
he can give one single example of an undercover operation that 
has been compromised, he has been able to do it.
    In fact, the real reason that we have the Tiahrt Amendment, 
I think we can find by looking at the Washington Post from July 
21, 2003, when Todd Tiahrt was asked why he put in the Tiahrt 
Amendment----
    Mr. Burton. I am not asking you about Todd Tiahrt. I am not 
asking that question.
    Mr. Feinblatt. Sir, the FOP supports Todd Tiahrt. We are 
talking about the FOP.
    Mr. Burton. No, no, no, no. Just the----
    Mr. Feinblatt. The reason that they are supporting the 
Tiahrt Amendments is because ``I wanted to make sure I was 
fulfilling the needs of my friends who are firearms dealers, 
and the NRA officials said they were helpful in making sure I 
had my bases covered.'' What we have here is another example of 
Congress bending over backward----
    Mr. Burton. All right. You just go on and on and on.
    Mr. Feinblatt [continuing]. To protect the gun industry.
    Mr. Burton. You have made your point. Let me just say this 
to you, or ask you this question. How many people are in the 
FOP around the country?
    Mr. Feinblatt. Several hundred thousand, about 300,000, I 
think.
    Mr. Burton. And how many oppose the Tiahrt Amendment and 
take your position?
    Mr. Feinblatt. There are many States, there are States that 
are fractured----
    Mr. Burton. How many?
    Mr. Feinblatt. I don't have that answer.
    Mr. Burton. You should.
    Mr. Feinblatt. Why should I? I can tell you this.
    Mr. Burton. Because you are making categorical statements 
that can't be verified.
    Mr. Feinblatt. I am not making a categorical statement. One 
police organization opposes it, and 10 nationals, 1 police 
organization supports it, 10 nationals oppose it, 22 State and 
regionals oppose it, 175 police chiefs. I do addition that way.
    Mr. Burton. The FOP represents more than all of those you 
named. Combined. That is it. I have no more questions.
    Mr. Kucinich. I want to thank the gentleman from Indiana. I 
want to ask the witness if you could provide this committee 
with the qualification and the quantification of the various 
groups that have taken positions on this that you offer to this 
committee as proof of the position that you hold.
    Mr. Feinblatt. Absolutely.
    Mr. Kucinich. We would appreciate it very much.
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    Mr. Kucinich. Also without objection, the Washington Post 
article that you mentioned, if it could be included in the 
record, and the letter from the Illinois FOP, if it could be 
included in the record. Without objection.
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    Mr. Kucinich. Mr. Bilbray, you have 9 minutes.
    Mr. Bilbray. Thank you, Mr. Chairman. I hope to not use it 
all up.
    I would first of all like to thank Ms. Thomas. I think too 
often we don't talk about where we really want to go with these 
issues. Ms. Thomas, I think it might have been a slip of the 
tongue, but you indicated you really would like to see national 
registration of all firearms within the Nation.
    My question to you though, is, you made a comment about 
registering motor vehicles. What State requires that you must 
register a car to own a car?
    Ms. Thomas. I believe the State of California does. You and 
I are both from California and I believe I registered my car, 
and that is because I had to. When a police officer pulls me 
over and they ask me for my registration, I believe I need to 
provide that.
    Mr. Bilbray. Ma'am, let me clarify. Are we not required to 
register a car simply to own a car? You are required to 
register a car to operate that car on a public right of way. 
Ownership of a motor vehicle, motorcycle, car, tractor, 
whatever, is not regulated by the State for ownership. It is 
regulated for use on public right of ways.
    So there is a distinct difference here, when we talk about 
this, that from now on, I am just saying as a local government 
guy, there is a huge difference, and I think now if you think 
about it, if you own a motorcycle that is just going to be used 
off-road, you don't have a registration, right? You don't have 
to license it then. But if you use it on the road, there is a 
distinct difference. I would use, a fair comparison would be 
the fact that we do register and permit those who want to carry 
a firearm, loaded, in the public. So there is a distinct 
difference.
    So in the future, I hope that when you bring this up, you 
think about the fact that to drive a car on California roads, 
you are required to register it. But mere ownership is not a 
registration.
    Ms. Thomas. I brought that up as an example of ways in 
which we as a society have balanced the rights of the 
individual against the risk to society. We take steps in order 
to ensure that there are safety provisions, preventive safety 
provisions and tracking in place. Certainly, I trust you are 
100 percent about car registrations.
    Mr. Bilbray. From now on, there was a mis-speak there, to 
own a car, you don't have to have it registered, to drive it on 
a public street, you do, though.
    Ms. Thomas. If you say so, then I am sure you are correct.
    Mr. Helmke. In Indiana, it is a little bit different. If it 
is an operable vehicle, you do need to have it licensed and 
registered. There are distinctions.
    Mr. Bilbray. Usually, it is because, specifically on a tax 
purpose, there is a personal property tax, and that is used to 
levy a tax.
    Mr. Helmke. I know in Indiana the concern is abandoned 
vehicles, too, on the streets that are inoperable.
    Mr. Bilbray. Junk. And there you come back to--John, your 
city sued the car, I mean, the manufacturers of the firearms, 
because the ATF was not enforcing the law?
    Mr. Feinblatt. What I was referring to, no, is gun dealers. 
New York City, along with many other cities, does have a suit 
against manufacturers. However, what I referred to in my 
testimony and the discussion here today was a suit against 27 
gun dealers in five States.
    Mr. Bilbray. In five States?
    Mr. Feinblatt. In five States.
    Mr. Bilbray. And you have other activities against those 
who manufacture?
    Mr. Feinblatt. We do have a pending suit against 
manufacturers that requires them to conduct basically a code of 
conduct which will require them to take notice of dealers who 
have high traces and continue to sell illegally.
    Mr. Bilbray. Are they violating the ATF regulations?
    Mr. Feinblatt. The dealers, which is the suit I talked 
about, are absolutely violating them.
    Mr. Bilbray. OK, you said you are suing them because ATF is 
not doing the work. I am talking about the lawsuits against gun 
dealers.
    Mr. Feinblatt. We are suing them, what we are actually 
suing the dealers for is violating the law. All we are trying 
to do is enforce the law.
    Mr. Bilbray. OK, you have one group that are the dealers 
you are suing because they are violating the law. Are the gun 
manufacturers violating the law?
    Mr. Feinblatt. The gun manufacturers is a completely 
different type of suit. It is a suit where we are basically 
calling upon them to take notice of illegal sales practices and 
just adopt a code of conduct. But when you talk about the 
dealers, what we are suing is 27 dealers who flagrantly sold 
guns to straw purchasers. They are on tape, caught red-handed. 
What we are only asking for is to enforce the law. That is all 
that we want to do. Most gun dealers play by the rules. Most 
gun dealers are absolutely honest. But breaking the law----
    Mr. Bilbray. Getting back to this issue, though, you have 
two sets of lawsuits now and you are willing to defend one 
based on the fact that they are violating the law. I went back 
and said you had another one----
    Mr. Feinblatt. I agreed.
    Mr. Bilbray. You are suing them because they make guns or 
because they are breaking the law?
    Mr. Feinblatt. We are suing them because they are not 
taking notice, it is a civil suit and they have a 
responsibility, it is a negligence action based on the fact 
that they continue to supply guns to dealers who are breaking 
the law.
    Mr. Bilbray. Do you have that kind of lawsuit to the 
manufacturers of alcoholic beverages?
    Mr. Feinblatt. We actually do, certainly----
    Mr. Bilbray. Beer, wine?
    Mr. Feinblatt [continuing]. Sting operations all the time--
--
    Mr. Bilbray. I meant the manufacturers, the national 
manufacturers of alcohol, as opposed to----
    Mr. Feinblatt. No, we don't, but there is a big difference, 
which is, the manufacturers actually know who are the illegal 
gun dealers.
    Mr. Bilbray. Oh, so they do, so they are breaking the law, 
you are saying?
    Mr. Feinblatt. No. What I am saying is they are on notice. 
I don't believe the manufacturers of Camel cigarettes knows 
when the corner bodega sells illegally to a minor. But there is 
no question----
    Mr. Bilbray. So you are saying, I thought you said that the 
gun dealers weren't breaking the law. Now you are saying they 
are, they are knowingly breaking the law?
    Mr. Feinblatt. The gun dealers are without a doubt breaking 
the law.
    Mr. Bilbray. No, but I meant the gun manufacturers.
    Mr. Feinblatt. I said that the gun manufacturers are on 
notice that they continue to supply to dealers that are 
breaking the law. All we are seeking in that manufacturing 
suit, along with many other cities who have brought similar 
suits, is that they stop selling to those.
    Mr. Bilbray. Is it against the law for them to make those 
sales?
    Mr. Feinblatt. It is a, I think that it creates a nuisance, 
it creates a civil nuisance and that is a colorable claim under 
law.
    Mr. Bilbray. OK, that's why you are going civil, as a 
nuisance.
    Mr. Feinblatt. We are talking about civil cases, 
absolutely.
    Mr. Bilbray. I would ask, you are a high ranking individual 
in law enforcement, or in the city. Is New York City a 
sanctuary city for illegal immigrants?
    Mr. Feinblatt. Absolutely not. And I am not sure what 
relevance it has to today's testimony.
    Mr. Bilbray. The activity of information sharing, the 
activity of focusing on certain deals, city of New York in the 
past has had major problems. I don't know what your status at 
this time. But we have had open discussion about not having law 
enforcement cooperate with Federal law enforcement, not sharing 
information with Federal law enforcement over on one side. I 
just feel it is really inconsistent for the city of New York, 
who has in the past said, we are not going to participate with 
the Federal Government on this issue, because we are worried 
about privacy, we are worried about individual rights, we are 
worried about violation of some, a segment of our population 
because it is so important to protect these individual rights 
and this privacy, and then on another issue for the same city 
to say, it is ridiculous to worry about those, not sharing 
information, it is ridiculous to worry about the privacy and 
moving it over. I just have to say, John, I really see an 
inconsistency with the history.
    Mr. Feinblatt. There would be an inconsistency if it were 
true, Congressman. However, let me tell you, because in fact I 
have testified before Congress on this very issue. It is 
certainly our policy to notify people when there have been 
criminal convictions.
    The problem is, actually that the INS has, makes it 
extremely difficult to make these reports. In fact, I wish I 
had a document from the INS which basically goes through step 
by step what instructions to INS officials, what they are to do 
when they receive a call from a local. And let me paraphrase 
it, since I don't have it in front of me. The instructions go 
something like this: if you get a phone call from a local law 
enforcement agency trying to report that a person who is 
undocumented has committed a crime, tell the caller that you 
should now write a letter. If they then follow that up and 
write a letter, rather than making a phone call as instructed, 
you should then instruct them to have their supervisor write a 
letter. If they then write a letter according, if the 
supervisor then writes a letter, advising of the conviction or 
the arrest of somebody, you should then, and I can't remember 
the next steps of it, provide documentation.
    So the problem really is that the INS has historically, and 
I want to be truthful, I don't know whether this has been 
changed, but historically has made it extraordinarily difficult 
for locals to do it. Because in fact, the INS has not wanted to 
enforce these laws.
    Mr. Bilbray. Well, I appreciate that concern and the 
history of a previous administration, at least, and I would be 
interested to see what this administration looks at, 
cooperation with the Federal Government or specific direction 
to law enforcement, that unless somebody has committed other 
crimes, that individuals who are illegally present in the 
United States would not be apprehended or engaged by New York 
law enforcement.
    My biggest point is this. The privacy issue needs to be 
addressed on both sides. But the consistency of law enforcement 
to say, one issue we are going to be engaged in lawsuits and 
litigation on the other side, we are basically going to be 
saying, unless one of our city laws are broken or State laws 
are broken, we are not going to be engaged.
    Mr. Kucinich. The gentleman's time has expired.
    Mr. Feinblatt. Let me just respond.
    Mr. Kucinich. The gentleman's time has expired.
    Mr. Feinblatt. Gun trace data----
    Mr. Kucinich. Sir?
    Mr. Feinblatt [continuing]. Only has crime data in it. So 
the only privacy that it is actually protecting is criminals.
    Mr. Kucinich. The witness is out of order. Actually, the 
gentleman's time has expired. I appreciate your presence here, 
but I would just appreciate your following the decorum of this 
committee.
    Mr. Burton. Mr. Chairman.
    Mr. Kucinich. The gentleman's time has expired. I want to 
thank this panel for its presence.
    Mr. Burton. Can I submit something for the record?
    Mr. Kucinich. The gentleman certainly can, without 
objection.
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    Mr. Kucinich. All Members will have 5 days to submit 
testimony. I want to thank each of the witnesses for being 
here. Your presence is very much appreciated and I am grateful 
for the testimony which you have brought to this committee.
    This is the opening of a much longer discussion and your 
presence has helped to ensure that we were able to make a 
positive beginning. So I am going to dismiss the first panel 
and ask for the second panel to be ready.
    We are now going to move to our second panel of witnesses 
on this Domestic Policy Subcommittee hearing entitled, ``Lethal 
Loopholes: Deficiencies in State and Federal Gun Purchase 
Laws.'' I would now ask the witnesses to, first I will 
introduce them.
    We have Rachel Brand. Rachel Brand was confirmed as 
Assistant Attorney General for the Office of Legal Policy of 
the U.S. Department of Justice on July 28, 2005. In her 
position, she manages the development of a variety of civil and 
criminal policy initiatives, the creation of departmental 
regulations and the Department's role in the confirmation of 
the President's judicial nominees. Her office also oversees 
legal policy for the ATF and the FBI.
    Before her current appointment, Ms. Brand worked in the 
Office of Legal Policy principally on terrorism issues; served 
as an associate counsel to the President and clerked for 
Supreme Court Justice Anthony Kennedy.
    In addition to Ms. Brand, the Department of Justice has 
made Steve Rubenstein, the ATF's Chief Counsel, available to 
sit at the witness table and respond to any questions Members 
may have regarding the ATF's role in enforcing firearms law, 
including the Brady Act. Stephen Rubenstein was appointed Chief 
Counsel of ATF on September 29, 2003. He serves as the 
principal legal advisor to the ATF's director and oversees 
legal services related to, among other laws, Federal firearms 
and explosives laws.
    His office provides technical assistance to congressional 
committees in legislative drafting sessions; makes 
recommendations to the Department of Justice concerning 
litigation and furnishes legal advice and assistance to other 
Federal, State and local agencies including the U.S. attorneys 
and Justice Department officials in the prosecution of ATF 
cases. Prior to becoming Chief Counsel, Mr. Rubenstein held the 
position of Associate Chief Counsel for 5 years.
    It is the policy of this subcommittee and also of our full 
committee, the Committee on Oversight and Government Reform, to 
swear in all witnesses before they testify. I would ask that 
the witnesses rise, raise your right hands.
    [Witnesses sworn.]
    Mr. Kucinich. Thank you. Let the record reflect that the 
witnesses answered in the affirmative.
    As in panel one, I ask our witnesses to give an oral 
summary of their testimony. Keep the summary under 5 minutes in 
duration. I want you to keep in mind that your complete written 
statement will be included in the hearing record. Ms. Brand, 
you may begin your testimony.

 STATEMENT OF RACHEL L. BRAND, ASSISTANT ATTORNEY GENERAL FOR 
LEGAL POLICY, DEPARTMENT OF JUSTICE, ACCOMPANIED BY STEPHEN R. 
RUBENSTEIN, CHIEF COUNSEL, BUREAU OF ALCOHOL, TOBACCO, FIREARMS 
                         AND EXPLOSIVES

    Ms. Brand. Thank you, Chairman Kucinich, Congressman 
Burton. I appreciate the opportunity today to talk about the 
National Institute Criminal Background Check System [NICS]. The 
Brady Act required the Attorney General to establish a system 
that gun dealers can contact to determine whether a prospective 
gun purchaser is prohibited under Federal or State law from 
buying a gun. The NICS is that system.
    The NICS has had a significant impact in preventing 
prohibited persons from buying guns from gun dealers. Since 
1998, as you mentioned earlier, chairman, over 75 million 
background checks have been processed by the NICS. Those checks 
have denied about 1.1 million gun transfers to persons 
prohibited from possessing firearms.
    The NICS has also gone a long way toward fulfilling the 
Brady Act's requirement that background checks be completed 
promptly, so that lawful purchasers can buy a firearm without 
unreasonable delay. Currently, 92 percent of NICS checks are 
completed during the initial phone call, usually within a 
minute. Ninety-five percent of all checks are completed within 
2 hours.
    The NICS is a computerized system that queries several 
national data bases simultaneously, including what we call the 
III, which is a data base of criminal history records, the 
NCIC, which includes among other things records of protection 
orders and wanted persons, and the NICS index itself, which 
includes other records that are relevant specifically to gun 
background checks.
    The effectiveness of the NICS in preventing gun transfers 
to prohibited persons depends directly upon the availability of 
records to the system. Although the Brady Act requires Federal 
agencies to provide the NICS upon the Attorney General's 
request with information about those who are prohibited from 
buying firearms. States are not required to provide any 
information to the NICS. So to the extent that they do so, they 
do so voluntarily.
    To improve the availability of State records of the NICS, 
NCIC and III, the Brady Act established the NCHIP Federal 
funding program, which since 1995, has awarded over $500 
million to the States. With the help of NCHIP, the States have 
come a long way in increasing the automation and accessibility 
of records to the Federal data bases.
    In addition to providing funding to the States, the FBI and 
ATF have worked tirelessly since the inception of the NICS to 
encourage States to provide more records to the system. This 
outreach has included education of State officials about the 
NICS and about the contours and parameters of the Federal 
firearms prohibitors and given technical support to State 
agencies that hold the records.
    Specifically relevant to the Virginia Tech tragedy, both 
the ATF and FBI have done outreach and provided education to 
States and encouragement to provide more mental health records 
to the NICS system. One of the most recent examples of that is 
a letter sent yesterday by ATF to all the States, explaining 
the Federal mental health prohibitor and offering to help the 
States determine whether their records meet the Federal 
standard. If we have not already provided you with a copy of 
that letter, we will do so after the hearing.
    ATF also plans to amend its Form 4473, which is the form 
that the person fills out when they go to a gun dealer to buy a 
gun, to provide more information to the prospective buyers 
about the parameters of the mental health disqualifier.
    Despite the Department's efforts and the tremendous 
progress that has been made in improving the completeness of 
records available to the NICS, there are still significant 
shortcomings in the system. They include, for example, the fact 
that about half of III arrest records are missing final 
dispositions, and the fact that fewer than half of the States 
provide any mental health records to the NICS, even though 
States that do provide records, only a handful of those provide 
any significant number of mental health records to the NICS.
    We are continuing our efforts to encourage the States to 
provide more information to the NICS and several States are 
actively engaged in changing their law or in taking other 
efforts to provide more information to the NICS.
    So I appreciate the opportunity to testify today. I would 
like to note that Federal firearms prosecutions are one of the 
Department's top priorities. We take that very seriously 
through Project Safe Neighborhood. I would note that since 
fiscal year 2001, when Project Safe Neighborhood was stood up, 
we have charged over 71,000 defendants with gun charges. The 
number of gun prosecutions starting in the 6-years from fiscal 
year 2001 to fiscal year 2006 is more than twice the number of 
Federal gun prosecutions that was brought in the previous 6 
year period. So I want the committee to know that we take 
enforcement of the gun laws very seriously.
    Thank you very much, and I would be happy to answer your 
questions.
    [The prepared statement of Ms. Brand follows:]
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    Mr. Kucinich. I thank the gentlelady.
    Mr. Rubenstein.
    Mr. Rubenstein. I am happy to be here and would be happy to 
answer any questions.
    Mr. Kucinich. You are going to be here just to answer any 
questions?
    Mr. Rubenstein. Yes.
    Mr. Kucinich. OK. Thank you very much.
    Ms. Brand, in your written testimony, you have outlined the 
amount of data submitted into NICS. But what is particularly 
important to establish here is how much data NICS would contain 
if the data base were complete and consequently, how much data 
is still missing. It is kind of a continuation of the 
discussion from the last panel. That is what I had asked your 
staff to prepare for this hearing. I am disappointed that it 
hasn't been produced yet. Do you have it now?
    Ms. Brand. Are you asking how many records exist, for 
example, in mental health that we do not have? Is that what you 
are asking?
    Mr. Kucinich. I am asking, how much data is missing from 
your data base?
    Ms. Brand. It is really impossible for us to know that, to 
take the mental health disqualifier, for example, as was 
discussed in the first panel, under Federal law, a person is 
prohibited from possessing or purchasing a gun if they have 
been adjudicated by a court or other government agency as a 
danger to themselves or others as a result of mental illness, 
or if they have been involuntarily committed.
    We at the Federal level have no way of knowing how many 
such persons are out there. In some States, it would be 
difficult for the State even to know right now, because most of 
those adjudications, or many of those adjudications, will be 
made by State courts in all the different counties around the 
State, with no centralized----
    Mr. Kucinich. So what is the completeness of your data 
base, then, at NICS?
    Ms. Brand. We know that very few States provide significant 
numbers of mental health records to the NICS, and so we know 
that it is substantially incomplete. We just don't know the 
number, the total number that might be out there.
    Mr. Kucinich. I will get more specific. Let's say including 
all the Federal prohibited persons categories, what is the 
percentage of data that has been entered into the NICS data 
base in a form that can be used in the Brady background check?
    Ms. Brand. The best data that we have concerns criminal 
dispositions. My written testimony does provide a little bit 
more detail on that. We think about three out of four criminal 
records are available to the NICS, so about 75 percent 
available to the NICS in some form. The main problem with 
criminal history records is that although the arrest record may 
go into the III at the beginning, less than half of those 
records have a final disposition in the system. So if someone 
who had been arrested goes to buy a gun, then NICS may see in 
the system that there was an arrest, but have no idea whether 
the person was actually convicted. Simply being arrested 
doesn't prohibit one from buying a firearm. Having been 
convicted of certain crimes does. So then the NICS system would 
have to go and contact the State to find out what the final 
disposition was.
    Mr. Kucinich. How deficient is that, then, with respect to 
State reporting? Let's talk about criminal history.
    Ms. Brand. We think three out of four criminal records are 
in the system in some form, but only about 44 percent of those 
have final dispositions.
    Mr. Kucinich. What about mental health?
    Ms. Brand. We don't know what the total universe of mental 
health records is, so we are unable to know.
    Mr. Kucinich. What do you have in terms of the data base? 
Do you have anything?
    Ms. Brand. We know the total number of records that we 
have. We know how many States provide any records, which is 22 
States provide any records. But many of those States have only 
provided maybe one or two records ever to the system.
    Mr. Kucinich. So you are saying that data base, as far as 
with respect to mental health reporting, wouldn't be----
    Ms. Brand. Is very incomplete.
    Mr. Kucinich. Right. What about domestic violence records?
    Ms. Brand. Well, domestic, if you are talking about 
misdemeanor crimes of domestic violence, we believe that many 
of those are in the system. The difficulty there, though, is 
that they would be provided to the III as an assault charge, 
maybe. But the State wouldn't flag it, necessarily, as a crime 
of domestic violence. So when a person goes to buy a gun, the 
NICS would have to take a look at the record and try to then 
contact the State and go behind it and figure out whether it 
was a crime of domestic violence or not.
    Mr. Kucinich. Excluding domestic violence convictions, what 
percentage of conviction data that are relevant to the 
prohibited persons have been submitted by the Federal 
Government and the States to the NICS data base?
    Ms. Brand. The best information I have is that we have 
three out of four criminal records. I believe that includes 
both Federal and State. Yes.
    Mr. Kucinich. In your written testimony, you state that 
fully one half of disposition data, that is data regarding 
whether an individual charged with a crime was ultimately 
convicted, is not currently in that NICS data base. So taking 
the deficiency of disposition data into account, I would like 
to see if you want to revisit your estimate.
    Ms. Brand. I am not sure I want to do the math on the fly, 
Mr. Chairman. But we could see if we could provide better 
information about the statistics to you after the hearing.
    Mr. Kucinich. Actually, we want to have that kind of a 
dialog with you.
    Ms. Brand. It is 44 percent of 75 percent, I guess, 
whatever that is. Because we have 75 percent of all criminal 
records, 44 percent of those have complete dispositions, that 
is my understanding.
    Mr. Kucinich. So that would be about 33 percent or 
something like that. OK. So given your conclusion that the NICS 
data base is deficient and substantially incomplete, and the 
testimony you have heard from witnesses on the first panel that 
the pending legislation, the NICS Improvement Act, would 
improve the quantity and quality of data in NICS, does the 
Department of Justice have a position on the NICS Improvement 
Act and H.R. 297 that provides both what you could carrot and 
stick to States to report to NICS?
    Ms. Brand. We support the bill's general aims of 
encouraging, providing a financial incentive to States to 
provide more information. We actually already do something 
similar through the NCHIP program that I mentioned in my 
testimony and that was discussed in more detail in my written 
testimony. We most likely will have some technical comments on 
the bill and with respect to what the right dollar amount is, 
we haven't taken a position on that. But we certainly support 
its general aims.
    I thank you, Ms. Brand.
    Mr. Bilbray.
    Mr. Bilbray. Mr. Chairman, I just wanted to clarify for the 
record, because there was a statement made here, a testimony, 
the city of New York was talking about the fact that they were 
sort of outraged that the criminal activity, information was 
not being shared with the city of New York. When the witness 
was asked about the sanctuary status for illegals in New York, 
he clearly said that there wasn't any.
    I would just like the record to show that on September 22, 
2003, Executive Order 41 was signed by the mayor which said 
that any information pertaining to illegal immigration or that 
status is confidential and shall not be shared with Federal 
immigration or Federal officials. So I just want to make it 
clear that the testimony, I am sure the individual meant well 
and did not realize that he mis-spoke. But the city of New York 
is and has been for a long time a sanctuary city. And I just 
think that when we talk about exchanging information about 
lawbreaking, not telling people who are criminals and who are 
not, that we should be consistent on this. So I yield back, Mr. 
Chairman, to the gentleman.
    Mr. Burton. I just have a couple of questions, Mr. 
Chairman.
    First of all, I want to say to Ms. Brand, the record that 
you spoke of just a minute ago is very, very good. And you are 
to be congratulated. The Justice Department is to be 
congratulated on the record that has been compiled in dealing 
with these criminals and these people that break the law.
    Ms. Brand. Thank you.
    Mr. Burton. I will preface my questions with that.
    I think the only question I would really like to know the 
answer to is, you said that you generally agree with the goals 
of the NICS legislation to get additional information for the 
Federal Government to deal with these people. Do you have any 
idea of the cost to the States to garner the information on 
mental health records and also from the courts, the convictions 
of people that have been convicted of felonies or other crimes?
    Ms. Brand. I have never seen a specific dollar amount about 
how much it would cost the States to get their systems in a 
state that would allow them to provide all the mental health 
information. I will see if anyone at the Department has that 
information. I do know that the Bureau of Justice Statistics, 
which is part of the Department of Justice, is in the process 
of doing a survey to the States to determine which of them 
don't provide mental health records because of resource 
limitations and which of them don't provide mental health 
records of other reasons. Because there are a number of States 
that have State statutes and regulations that prevent them from 
providing that information to the Federal Government.
    Mr. Burton. Well, let me just say that the goals may be 
laudable, but the mandates to the States or the local, the 
cities throughout the country without funding from the Federal 
Government, unfunded mandates are something that the State and 
local governments do not want. So if we are going to go down 
that path where you need additional information on mental 
health records or convictions, then we ought to find out the 
cost and we ought to make sure that the States don't bear that 
burden.
    In Indiana right now, our property taxes are so high 
already that people pay are ready to march on the State house. 
So we want to make sure we don't add any more liabilities on 
the States from the Federal Government with a mandate that is 
not going to be funded.
    Ms. Brand. I agree, we would not support an unfunded 
mandate. My understanding is that the NICS Improvement Act 
doesn't mandate States to provide the information, but it 
provides money to do it. The NCHIP program which exists now 
provides grants every year to many States around the country to 
just help, for example, if they don't have an automated system 
at all to collect the records, it would help them fund the 
creation of something like that, or it would help them create 
the electronic systems to provide information electronically to 
the NICS. It assists them without requiring them to provide the 
information to the Federal Government.
    Mr. Burton. Thank you very much, Mr. Chairman. I don't have 
any other questions.
    Mr. Kucinich. I thank the gentleman.
    Ms. Brand, a July 2004 Department of Justice report found 
that most federally licensed firearm dealers are inspected 
infrequently or not at all. According to the former ATF 
Director, the agency's goal is to inspect each FFL at least 
once every 3 years to ensure that they are complying with 
Federal firearms laws.
    However, due in part to resource shortfalls, the ATF is 
currently unable to achieve that goal. ATF workload data show 
that the ATF conducted 4,581 federally licensed firearm dealer 
compliance inspections in fiscal year 2002, or about 4.5 
percent of the approximately 104,000 federally licensed firearm 
dealers nationwide. At that rate, it would take the ATF more 
than 22 years to inspect all federally licensed firearm 
dealers. That is right from the Department of Justice report.
    Why is this the case and is it still the case, and how can 
the ATF improve on its inspection performance?
    Ms. Brand. If you don't mind, I would like to refer that 
question to Mr. Rubenstein, who is Chief Counsel of ATF.
    Mr. Kucinich. Mr. Rubenstein.
    Mr. Rubenstein. Mr. Chairman, thank you for the question.
    ATF tries to target its resources to inspect those 
licensees who come to our attention. The vast majority of 
licensees follow the rules and regulations and it is not 
necessary that we inspect them very often. We try to target our 
investigations to licensees who do come to our attention, 
either through local law enforcement or through our own 
undercover efforts, to ensure that they are in fact complying 
with the rules and regulations.
    So while we may not be able to inspect all the licensees as 
often as we might like, we try very hard to inspect those 
licensees who do need to be inspected to ensure that they are 
complying with laws and regulations.
    Mr. Kucinich. How do you know who needs to be inspected and 
who doesn't, if you have so few personnel?
    Mr. Rubenstein. We get that through targeting our 
inspections, each field division has a plan in which it 
determines whether or not, who it is going to inspect, by 
talking with local law enforcement, undercover operations it 
may be using, random inspections that it conducts. Over the 
years, we look at trace data, obviously, and determine whether 
or not that might be a reason why we might look at a licensee.
    So we try very hard to target the resources we do have for 
those licensees. Our primary goal is to ensure that they are in 
fact complying with the law. When we go out to inspect a 
licensee, our goal is to ensure that they know what the 
regulations require and that they are in fact following those 
regulations.
    Mr. Kucinich. Here is what I am wondering. I am trying to 
square what you had to say with the former panel, 
representative from New York City, who said that they were able 
to identify 27 licensed gun dealers, and that they had to sue 
them to come into compliance. Did New York City do a better job 
than the ATF in the case of their sphere of operation?
    Mr. Rubenstein. I am not going to comment on whether New 
York City did a better job or not.
    Mr. Kucinich. Were they luckier with enforcement?
    Mr. Rubenstein. Again, I am not going to comment. We did 
look, they did send us some information about the 27 
investigations. In reviewing that with the U.S. Attorneys, it 
was determined that there was not enough evidence to bring 
criminal actions at the Federal level.
    But be that as it may, I think ATF sets its priorities as 
to who it should inspect, and I think uses its resources to its 
fullest capability to ensure that licensees are in fact 
complying with the Federal firearms laws. I think as the first 
panel represented and as I think we all know, the vast majority 
of licensees are in fact complying with the law.
    Mr. Kucinich. One of the things that you said, you said you 
didn't have enough, there wasn't enough evidence. It was my 
understanding that New York City actually had these gun dealers 
on tape. Were you aware of that?
    Mr. Rubenstein. I was aware that there were some tapes, 
yes, sir. I did not review the tapes.
    Mr. Kucinich. In terms of evidence, just for my 
information, what standard of evidence does a tape provide? Is 
it a low standard? Is it a high threshold of evidence?
    Mr. Rubenstein. I am not in a position to testify about 
what was or was not on the tape, or whether or not it met a 
standard. All I can tell you was that the U.S. Attorneys who 
reviewed the tape determined that it did not meet the standard 
for prosecution.
    Mr. Kucinich. I would just say that, with all due respect, 
Mr. Rubenstein, it was obviously enough evidence that the gun 
dealers voluntarily entered into a consent agreement that 
dramatically changed the way in which they operated. I am just 
pointing that out to you as someone who is the counsel for the 
Department.
    Mr. Rubenstein. I understand, and again, I can't comment on 
that.
    Mr. Kucinich. This isn't a point of view, this is a point 
of law.
    Mr. Rubenstein. I am just saying, as far as whether or not 
it met a Federal standard for prosecution, is perhaps different 
than entering into a consent agreement with a private party.
    Mr. Kucinich. Does the DOJ support repeal of the Tiahrt 
Amendment?
    Ms. Brand. The answer is no. The President's budget request 
contained language that was similar to the Tiahrt Amendments.
    Mr. Kucinich. Why not?
    Ms. Brand. I am going to defer to Steve on that one.
    Mr. Rubenstein. We don't believe the Tiahrt Amendment 
impedes law enforcement. Over the last several weeks, and 
perhaps months, there have been numerous articles and questions 
about the Tiahrt Amendment and what trace data can be released 
and what can't be released. What I want to say is that, 
firearms trace data is critically important, that is developed 
by ATF to assist State and local law enforcement in 
investigating and solving violent crimes. ATF traces 
approximately 280,000 firearms every year for approximately 
17,000 law enforcement agencies around the country.
    We consider that to be law enforcement-sensitive 
information. Because it is often the first investigative lead 
in the case. If I can briefly explain what occurs, a police 
department will find a gun at a crime scene, they will ask ATF 
to trace it. We will trace that firearm for that local police 
department.
    That may be the last ATF hears about that trace. We will 
give that information to that local police department and 
assist them in any way possible to help investigate that crime. 
They at some point, if they are asked by another law 
enforcement agency outside the jurisdiction, are free to 
disclose that information to any other law enforcement agency. 
In fact, there are multi-jurisdictional task forces in which 
trace data is disclosed.
    The concern for ATF, the historical concern, predating the 
Tiahrt Amendment, has been the release of trace information to 
other than a law enforcement agency who recovered a firearm. 
Because the concern would be, if it is released to third 
parties, it could help criminals evade detection, it could 
interfere with undercover operations, it could interfere with 
ongoing State investigations that were being pursued. But ATF's 
primary goal, one of its primary goals under the Gun Control 
Act, is to assist State and local law enforcement in their 
fight against crime. I think the Tiahrt Amendment, we don't 
believe, does anything to stop ATF or to impede ATF in 
assisting the States in that fight.
    Mr. Kucinich. I thank the gentleman.
    Mr. Issa, do you have questions?
    Mr. Issa. Just following up on that, can we all agree that 
the two biggest challenges we face today is in fact making sure 
that all persons, whether mentally defective, criminal in their 
background, illegally in this country, need to be on a 50 State 
basis, plus the territories, excluded from being able to 
purchase guns. Is that a fair, broad statement?
    Ms. Brand. Federal law already prohibits the categories of 
people you just mentioned.
    Mr. Issa. Right, except in fact, Virginia Tech shows us 
that we have not yet successfully implemented those existing 
laws.
    Ms. Brand. There are significant gaps, there are a 
significant number of records that are not in the NICS system, 
that is true.
    Mr. Issa. The reason for my question, we are an oversight 
and reform committee. It is actually very good that we are, 
because our job is to say, in many ways, are the existing laws 
sufficient and is it an absence of implementation, is it a 
defect in the law, or is it in fact, if you will, bureaucracies 
that are in the way. It appears as though we do have a State 
cooperation and information sharing problem, State and local, 
that has to be worked on. Some of it will have to be, 
consistent with the Constitution, it will have to respect the 
States, but encourage the States.
    The second and obvious one is, and I think Mr. Bilbray 
brought this up earlier, we have a challenge in that we have 12 
million illegals in this country. They represent, in 
California, nearly half of all the people who are incarcerated 
in our prisons and they represent a huge part of the gun crime. 
So we have a Federal issue that would appear to be not fully 
taken care of.
    And then last one, and I think, Mr. Rubenstein, you were 
hitting on it, we do have a mandate to track weapons from womb 
to tomb and in fact to provide law enforcement the ability to 
get the information necessary in criminal prosecutions. If I 
heard you right, basically you are saying you are reasonably 
satisfied that you are going that direction. I want to make 
sure I give you a chance to say whether or not you believe that 
is as big a problem as the State and local cooperation and the 
Federal implementation of persons who should not be able to 
purchase, which clearly, this committee, we didn't even meet 
and we knew we had a problem there.
    Mr. Rubenstein. If I understand your question correctly, I 
think that is correct.
    Mr. Issa. OK, but your satisfaction level is relatively 
high as to release of information State and local law 
enforcement?
    Mr. Rubenstein. Yes, sir.
    Mr. Issa. So if, and hopefully we will get unanimity here, 
if we were to focus most narrowly to get the most effectiveness 
from this committee's energies and time, both in oversight and 
potential legislation we might introduce, although it probably 
wouldn't come back to this committee, it would be referred to 
another committee, we should work on things which would allow 
or encourage or bring about 50 State cooperation and compliance 
with the individuals, the groups that I mentioned that are 
prohibited from gaining firearms?
    Ms. Brand. If I understand what you are saying, yes. It has 
been a goal of the Department since NICS was stood up in 1998 
to constantly increase the number of records the State put into 
the system. Now, we can't constitutionally force them to do 
that, but we, it is not as though we just woke up after 
Virginia Tech and started encouraging them to do it. We have 
been encouraging them to do it for years.
    Mr. Issa. Right. And if you were here, on an earlier panel, 
I made the point that this President has clearly made it a 
priority for the U.S. Attorneys, this Attorney General and his 
predecessor have, for gun crime enforcement, even where it 
wasn't necessarily popular, has made the point that U.S. 
Attorneys have to do a substantial amount of that.
    But circling back again, as you all know, the power of 
Congress in interstate commerce and other areas has been used, 
the highway implementation, we were able to get States to all 
go to 55 when we wanted them to go to 55, we were able to get 
them to go to 21 for the age of drinking when we wanted to. We 
have ways of encouraging States to do certain things and to 
comply. We certainly have tremendous amounts of dollars that 
come from the Federal Government to provide law enforcement 
tools. And we can reasonably expect that if they don't want 
that money, they can choose not to cooperate. If they do want 
that money, we can hook, perfectly constitutionally, that they 
shall comply with certain aspects of enforcement.
    The question is, is that the best use for this committee 
and if it is, what recommendations could you make to us for 
tools to do it or, more importantly, where we should first put 
our priority within that major group of non-compliance with 
making sure that certain groups or individuals do not get 
weapons?
    Ms. Brand. We already have the NCHIP funding program, which 
the President funds in his budget request every year. Congress 
actually has funded the NCHIP program at lower levels than the 
President's budget request for the last several years running, 
and for the last 2 fiscal years that program has been funded at 
only $10 million when the budget request has been around $50 
million.
    So $10 million is really not that much money to parse out 
among all the 50 States to help improve their systems. So we 
certainly support improving systems that way.
    Now, the NCHIP programs that it has funded has priority 
areas to encourage the States and their grant applications to 
focus on those areas. One of those areas is improving mental 
health records provision to the system. So that is something, 
that and the criminal records dispositions are two of the areas 
that the NCHIP program focuses on.
    Mr. Issa. Thank you, Chairman.
    Mr. Kucinich. Thank you. The time has expired.
    Mr. Burton.
    Mr. Burton. I have no questions. Thank you.
    Mr. Kucinich. I want to thank this panel for appearing.
    This committee will submit questions in writing and we 
would appreciate your response so that we can complete our work 
for this particular hearing. I want to thank you for your 
presence here, and we appreciate it.
    We are going to recess for two votes and I think we will 
probably be back here in about 25 minutes to a half hour, at 
which time we would ask the third panel to join us. This 
committee stands in recess.
    [Recess.]
    Mr. Kucinich. Good afternoon. Welcome to the witnesses. The 
committee will come to order again.
    This is the third panel of the Domestic Policy 
Subcommittee's hearing entitled, ``Lethal Loopholes: 
Deficiencies in State and Federal Gun Purchase Laws.''
    We heard from panels who represent the legal community 
against violence, the Brady Campaign Against Handgun Violence, 
Criminal Justice Coordinator for New York City, and Assistant 
Attorney General of Legal Policy, U.S. Department of Justice, 
and the Chief Counsel of the Bureau of Alcohol, Tobacco, 
Firearms and Explosives.
    This third panel consists of witnesses from Johns Hopkins 
University, University of Pennsylvania and from the National 
Alliance on Mental Illness. Susan Sorenson, Professor Sorenson 
is a professor of social policy and criminology at the 
University of Pennsylvania and part of the graduate group in 
public health. Since 1986, she has taught a graduate course at 
UCLA at Penn on family and sexual violence. Professor Sorenson 
has published widely in the epidemiology and prevention of 
violence, including homicide, suicide, sexual assault, child 
abuse, battering and firearms. She was a member of the National 
Academy of Sciences Panel on Research and Violence Against 
Women, a consultant to Unicef's May 2000 report on domestic 
violence against women and girls, and a member of the advisory 
panel for the 2001 U.S. Surgeon General's report on youth 
violence.
    We will also hear from Professor Daniel Webster, who is an 
associate professor of health policy and management at the 
Johns Hopkins Bloomberg School of Public Health, where he 
serves as co-director of the Center for Gun Policy and Research 
and associate director of research for the Center for the 
Prevention of Youth Violence. Professor Webster has published 
numerous articles on firearm policy, youth gun acquisition and 
carrying, firearm injury prevention, intimate partner violence 
and adolescent violence prevention. He is currently leading 
studies that evaluate policies to reduce illegal gun sales, he 
is leading a community gun violence prevention initiative and 
an intervention designed to encourage protective measures for 
victims of domestic violence.
    Finally, Mr. Ronald Honberg. Mr. Honberg is the national 
director for policy and legal affairs at the National Alliance 
on Mental Illness [NAMI]. During his 18 years with NAMI he has 
worked on issues affecting people with mental illnesses 
involved with criminal justice systems, including jail 
diversion, correctional treatment and community re-entry, and 
has drafted amicus curiae briefs on precedent-setting mental 
health legislation. Before coming to NAMI, Mr. Honberg worked 
as a vocational rehabilitation counselor for the State of 
Maryland, and in a variety of direct service positions in the 
mental illness and developmental disabilities field.
    It is the policy of the Committee on Oversight and 
Government Reform to swear in our witnesses before they 
testify. I would ask that the witnesses please stand, raise 
your right hands.
    [Witnesses sworn.]
    Mr. Kucinich. Thank you. Let the record show that the 
witnesses answered in the affirmative.
    As with panel two, I will ask you to give an oral summary 
of your testimony and to keep this summary under 5 minutes in 
duration. Bear in mind, your complete written statement will be 
included in the hearing record. We will begin with Professor 
Sorensen.

STATEMENTS OF SUSAN B. SORENSON, PROFESSOR OF SOCIAL POLICY AND 
  CRIMINOLOGY, UNIVERSITY OF PENNSYLVANIA; DANIEL W. WEBSTER, 
   ASSOCIATE PROFESSOR AND CO-DIRECTOR OF THE CENTER FOR GUN 
 POLICY AND RESEARCH, JOHNS HOPKINS BLOOMBERG SCHOOL OF PUBLIC 
 HEALTH; AND RONALD S. HONBERG, PROFESSOR OF SOCIAL POLICY AND 
  CRIMINOLOGY, DIRECTOR OF POLICY AND LEGAL AFFAIRS, NATIONAL 
                   ALLIANCE ON MENTAL ILLNESS

                 STATEMENT OF SUSAN B. SORENSON

    Ms. Sorenson. Thank you for the invitation to be here 
today, and I begin with good news. The number of homicides 
committed by an intimate partner has dropped during the past 30 
years. Also, the proportion of intimate partner homicides that 
were committed with a gun has dropped in the past 30 years.
    However, one bit of information remains disturbingly 
constant. That is that women are more than twice as likely to 
be shot by a male intimate as they are to be shot, stabbed, 
strangled, bludgeoned or killed in any other way by a stranger.
    When it comes to firearms, much of the discussion tends to 
focus on fatalities. But a firearm does not have to be fired to 
have an impact. It can be used to intimidate and to coerce an 
intimate partner to do what the abuser wants. An estimated 4 
million U.S. women have been threatened with a gun by an 
intimate partner, and nearly 800,000 have had an intimate 
partner use a gun against them.
    It would be as if every woman in Washington, DC, Boston, 
San Francisco, Chicago, Los Angeles, Miami, Hartford, Columbus, 
Indianapolis, Salt Lake City, Albany, Rochester, Syracuse, 
Buffalo, Milwaukee, Richmond and Des Moines had at least once 
in her life an intimate partner use or threaten to use a gun 
against her.
    Congress has passed two pieces of legislation that are 
relevant here. I will reiterate what we heard earlier today. 
The 1994 Violent Crime Control and Enforcement Act expanded the 
list of persons who are prohibited from possessing a firearm to 
include those against whom a domestic violence restraining 
order has been issued. Then in 1996, the Lautenberg Amendment, 
by which persons convicted of a domestic violence misdemeanor 
are prohibited from purchasing or possessing a firearm.
    Now, responsibility, as we have heard for how the laws were 
implemented, was left to the individual States. Some States 
already had laws in place and data bases against which purchase 
applications could be checked. Others have yet, more than a 
decade later, to develop such capacity. This is important 
because each year, about a million people in the United States 
obtain a restraining order against an intimate partner. Persons 
who come under a domestic violence restraining order likely are 
the single largest class of new prohibited purchasers each 
year.
    Reports by the Bureau of Justice Statistics indicate that 
about one out of every seven firearm transfer applications were 
denied due to domestic violence. Many more, however, are not 
denied, because the information about the domestic violence is 
not available, it is not made available or it is not easily 
accessed. The purchase prohibitions are more easily addressed 
than possession prohibitions. Although persons under a domestic 
violence restraining order are required to relinquish their 
firearms, very few do.
    I offer several recommendations in my written testimony, 
and I will just focus on a couple here. First is that States 
should implement, maintain and monitor the quality of an 
electronic data base for all domestic violence restraining 
orders and misdemeanors, and the data should be submitted, so 
they can be part of NICS. Work at the States is essential so 
that the intent of the Federal law is met. Therefore, some sort 
of incentive might be useful to speed quality compliance.
    We heard earlier from some of the other speakers who are 
concerned about requiring States to do the work of the Federal 
Government. I was thinking about that a bit over one of the 
breaks. It is not that, I would like to ask the question, 
compared to what. Because if the States don't do this, they are 
going to be picking up the costs for the incarceration and the 
prosecutions when the guns remain in the hands of those who 
should not be having the guns.
    So it is not a zero sum game, because the costs are still 
going to be borne by the States and local municipalities. But 
the issue is how those get spent. Personally, I would rather 
see them spent in prevention.
    Second, a Federal agency should monitor the amount and 
quality of the data that is submitted to NICS, and should issue 
periodic reports on these findings. There are concerns specific 
to these records. I can expand on that. And they merit very 
close monitoring, until there is more complete compliance.
    There will be perhaps some that won't comply. We know death 
certificates, for example, that are submitted to the National 
Center for Health Statistics, my understanding is that is a 
voluntary process that the States participate in. So the Feds 
have figured out how to make this work and how to get voluntary 
compliance. There is one State, I believe, that still has not 
complied and doesn't submit their death certificate records.
    But Federal agencies do know how to monitor the data they 
get to have a good sense of whether these are underestimates 
and to make sure of the quality of the records that they do 
receive.
    Next we need models and guidelines for firearm 
relinquishment and removal. It would be great if we could have 
allocations to an appropriate Federal agency so we could 
convene key stakeholders from around the country to develop 
guidelines to ensure compliance with Federal law.
    Last, consideration should be given to whether firearm 
prohibitions should be extended to related circumstances. I 
think specifically of former dating partners, as was pointed 
out already, as not covered under Federal law, and also to 
stalking. Stalking is a situation in which you have someone who 
becomes obsessed with another, and even though there may not be 
any relationship, they perceive a relationship or they want a 
relationship. When attempts to make contact are not met or are 
rebuffed, the person can develop motivation for wanting to harm 
the other. And it would be important to make sure that we don't 
allow them to have the means.
    So in summary, there is useful, relevant legislation 
already in place. Some expansion of dating partners and 
stalking merits consideration. But mostly, however, you have 
passed laws that need to be implemented and enforced. And by 
making a few other changes, you can help bring your intent into 
reality.
    Thank you.
    [The prepared statement of Ms. Sorenson follows:]
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    Mr. Kucinich. Thank you very much, Professor Sorensen.
    We will next hear from Professor Webster. You may proceed.

                  STATEMENT OF DANIEL WEBSTER

    Mr. Webster. Thank you, Mr. Chairman.
    I have submitted my written testimony. I am going to try to 
just cover some highlights.
    Basically, the general objectives of most gun control laws, 
Federal, State or local, are actually well-founded in science. 
Violence is not a random phenomenon, there are predictors and 
prior criminal offending problems with mental health are 
factors that a number of studies have shown to be associated 
with a risk for violence. There is frankly little disagreement 
about the general objectives of these basic polices. But the 
reason I guess we are here is, there is a huge disconnect 
between the objectives of the policies and whether the current 
laws are inadequate or are being enforced adequately.
    I would like to focus first on whether our criminal history 
restrictions are really adequate to address the objective, 
again, of trying to keep guns from dangerous people. Professor 
Sorensen mentioned the exclusions that were put into place in 
the 1990's for domestic violence offenders. Aside from that 
prohibition, we prohibit felons.
    But the question is, is that really the appropriate bar we 
want to set for someone, as long as you have been able to avoid 
getting a felony conviction or conviction for domestic 
violence, then you can have as many guns as you would like?
    There is precious little research, I am very sorry to say, 
to tell us enough about the adequacy of these current 
standards. There is, however, one study that looked at homicide 
offenders in the State of Illinois. What that study found was 
that, while the offenders typically had very long criminal 
histories, 57 percent of those did not have a felony 
conviction. So we are clearly missing a lot of criminal 
offenders by setting the bar at felony.
    There has been research done in California that showed that 
individuals with misdemeanor convictions have elevated risk for 
future violence. Those who are going to purchase firearms and 
have prior misdemeanor convictions are seven times more likely 
to commit future crimes of violence and firearms-related crimes 
than are individuals who don't have those kinds of convictions.
    California changed its policies in the early 1990's to deny 
violent misdemeanors firearms and what further research showed 
is that those who were denied were significantly less likely to 
re-offend than were individuals with similar arrest histories 
prior to them adding the new misdemeanor restrictions. So I 
think that is an important area to really fully achieve our 
objective of keeping guns from criminals and dangerous 
individuals.
    Another category of criminal offense that is not adequately 
addressed in Federal law and in 23 States is offenses committed 
while the offenders were juveniles. If those same offenses had 
been committed by an adult, they would have been prohibited 
from being able to purchase a firearm when they are of age. 
Criminal offending as a juvenile, particularly if that 
offending is serious or chronic, is very strongly related to 
adult offending. So that is another area in which, to achieve 
our objectives of keeping guns from dangerous people, we could 
expand those kinds of exclusion criteria.
    I want to sort of, I see that my time is about over, but I 
want to mention that with respect to the Tiahrt Amendment, many 
good points were made on the effects that has on local law 
enforcement. I want to say, as a researcher, it also impedes 
the kind of work that I have done to inform gun violence 
prevention efforts.
    And a study that we published last year showed that prior, 
when the data were more available, did not have the Tiahrt 
restrictions, and it was discovered that a gun dealer just 
outside of Milwaukee was a leading seller of crime guns, when 
that was made public, that dealer voluntarily changed his sales 
practices, and our research showed that the rate at which his 
guns went into the criminal commerce reduced by more than 70 
percent. We got more recent data through the assistance of the 
Milwaukee police department and found that post-Tiahrt, when 
the data were not readily available and basically gun dealers 
could do what they want, the problem went exactly back to where 
it was before the gun dealer was revealed as having problems 
with his sales practices.
    So I think that aside from simply helping address a very 
specific criminal case, there is also the issue of having data 
available to researchers and the public, so people will be more 
accountable.
    [The prepared statement of Mr. Webster follows:]
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    Mr. Kucinich. Thank you, Professor Webster.
    I will now hear from Mr. Honberg. You may proceed.

                 STATEMENT OF RONALD S. HONBERG

    Mr. Honberg. Thank you, Chairman Kucinich. I am very 
pleased to be here today on behalf of NAMI, which is a 
grassroots advocacy organization comprised of people with 
serious mental illness and their families.
    I would like to say at the outset that NAMI very much 
supports efforts to prevent violent or potentially violent 
individuals from possessing firearms. We thank you for the 
opportunity to help guide the committee's inquiry toward that 
end.
    In the wake of the Virginia Tech tragedy, many questions 
have been raised about how someone like Mr. Cho could have been 
allowed to purchase handguns. The real lessons of the tragedy, 
however, lie in the failed mental health system. Although we 
realize this hearing's focus is on our gun laws, it is equally 
important to recognize that timely and appropriate treatment 
might well have prevented that tragedy.
    With respect to the gun laws, I would like to make three 
basic points. First, there has been a suggestion today that the 
regulations guiding reporting of mental health information are 
clear. We don't think that the guidelines in the Brady 
regulations are sufficiently clear and that may be part of the 
problem. For example, the term that is used to describe mental 
illness is ``Adjudicated as a mental defective.''
    That term needs to be changed. It is both stigmatizing and 
incompatible with modern terminology used in the diagnosis and 
treatment of people with mental illness. It also creates 
significant uncertainty over who is and who is not covered 
under the law. The regulations implementing the Brady law 
attempt to define this term, but for reasons enumerated in 
detail in my written testimony, this definition is still very 
unclear.
    No State official charged with carrying out the 
requirements of the Brady bill could possibly know what this 
means, as it is a term that has been obsolete for close to 40 
years. And just as we wouldn't use the term idiot or imbecile 
in Federal law, so too should we not use the term ``adjudicated 
as a mental defective.''
    Second, as I stated at the outset, we support efforts to 
prevent violent or potentially violent individuals from 
possessing firearms. However, mental illness should not be a 
proxy for violence. Current research, including the findings of 
the landmark Surgeon General's report on mental health in 1999, 
strongly demonstrate that the overwhelming majority of people 
with mental illness are not violent. Research does show that a 
small subset of people with mental illness may pose higher 
risks of violence, and predictors include a past history of 
violence, non-participation in treatment, and co-occurring 
abuse of illegal drugs or alcohol.
    The NICS reporting system needs to be based on these kinds 
of clear risk factors. One model to consider for reporting is 
that under California law, which is categories that directly 
link to violence or potential violence. It is also important to 
keep in mind that other categories included in the NICS data 
base are more directly linked with violence. For example, as 
you have heard, court orders that restrain individuals from 
harassing, stalking or threatening an intimate partner or child 
of an intimate partner, and misdemeanor convictions for 
domestic violence are included. These categories are probably 
more directly relevant to potential violence than mental 
illness per se.
    So we believe that efforts must be made at the Federal 
level incorporating expertise from the National Institute of 
Mental Health and the Substance Abuse and Mental Health 
Services Administration to develop clear reporting criteria and 
mechanisms that are linked to violence, not solely to mental 
health treatment.
    Finally, NAMI believes that standards must be developed in 
Federal law to protect the privacy of information provided to 
the NICS system. We are very concerned that concerns about the 
inappropriate disclosure of sensitive information about mental 
health treatment may be a significant impediment for people 
with mental illness to seek help when they need it. 
Representative McCarthy has included a provision in H.R. 297, 
the NICS Improvement Act, which we have heard referenced a 
number of times today, requiring the publication of regulations 
by the Attorney General for protecting the privacy of 
information provided to the system. This would indeed be a 
positive step.
    But we believe these regulations must specify that only 
names and addresses should be included in the NICS system--I 
heard today that is in fact the case, that is not very well 
known to the public--with no further information about why a 
person is on the list. The law should also prohibit sharing the 
list with any Federal or State agency or individual for any 
other purpose, and privacy protections should apply to all 
agencies and individuals responsible for collecting and 
providing information for the NICS system.
    In conclusion, as I have said, we support efforts to 
prevent violent individuals from possessing firearms. In 
accomplishing this laudable goal, it is very important to 
establish criteria that achieve this objective without 
inadvertently subjecting people with mental illness to further 
stigma and prejudice, which can deter people from seeking 
treatment when they need it the most.
    Therefore, NAMI recommends a regulatory process that 
incorporates current scientific knowledge and brings clarity to 
this very, very complex issue. Thank you again.
    [The prepared statement of Mr. Honberg follows:]
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    Mr. Kucinich. Thank you, Mr. Honberg.
    Professor Sorenson, one of your recommendations is 
extending the purchase prohibitions to those who stalk former 
dating partners. Could you explain why the prohibition should 
be expanded to include those individuals?
    Ms. Sorensen. I believe it should be expanded to both 
former dating partners and stalking, regardless of the 
relationship, whether there was a prior relationship or not. 
People who are in the public eye are sometimes stalked by 
others and that kind of obsessive quality of wanting to have a 
relationship with someone is, and then to not have that be met, 
can be very disappointing. Then the person can sometimes become 
violent.
    So I don't think that there should be, the firearms 
provision, there should be discussions about whether it should 
be extended to all cases in which stalking has been, and there 
is a restraining order in place, where a judge or commissioner 
has already decided that this person constitutes a credible 
threat to this other person, so that it goes through the 
regular due process. But I think it should be extended there.
    Also, I believe it is former boyfriends and girlfriends, or 
maybe it is boyfriends and girlfriends in general, are those 
who are at highest risk of intimate partner homicide. So it 
seems like we would want to include that group in this 
protection under Federal law about domestic violence 
restraining orders.
    Mr. Kucinich. Do you see any wisdom in allowing States to 
adopt more stringent laws to see what works and how to balance 
rights, or do you think that we know enough now to establish 
uniformity at a Federal level for the expanded categories that 
you have discussed?
    Ms. Sorensen. Several States have already had these in 
place. California has had these in place for quite some time. 
This information is entered into the system that California 
uses to check for background checks and for purchases. So there 
is evidence that it is already working, or at least it can be 
implemented, is a better way to put it.
    Mr. Kucinich. Tell me more about who you work for in terms 
of the statistics that you gather and the policy 
recommendations that you make.
    Ms. Sorensen. This has been a content area for me, for my 
research, for a number of years. I also had the privilege of 
serving on an attorney general, this is for the State of 
California, former Attorney General Bill Lockyer, his policy 
committee, it was a task force. One of the things that we 
looked into was whether firearms prohibitions were being 
enacted appropriately and were being enforced correctly. We 
were surprised to find that there were a number of counties 
that were, as we put it, under-reporting. We would have 
expected far more restraining orders from them than we were 
getting. Sometimes it was because they weren't entering them, 
sometimes because the judges had crossed their prohibitions off 
on restraining orders. And sometimes because they lacked 
personnel to do it.
    And when it was brought to the attention, from the State 
Attorney General, to the local DAs and such, and the local 
police officers, and the persons who were responsible for that, 
they changed practices. So simply letting them know that, we 
are paying attention and we are going to be monitoring this, 
brought them quickly into compliance on some things.
    I think federally, if we know that is going to happen and 
that is happening at a Federal level, that would be great. We 
have fewer than 1 million restraining order records in NICS 
right now. There should be lots more than that.
    Mr. Kucinich. Thank you very much.
    Professor Webster, the ways that the laws are designed now, 
the prohibited categories at the Federal level and at the State 
level are mostly permanent. You do mention the case that some 
States restore firearm privileges at age 30 if juvenile 
offenders have disqualifying adult violations.
    Should this happen for other categories?
    Mr. Webster. I am not sure if I get the question. So the 
question is whether some prohibitions might be time limited? 
OK. I think if it is a matter of not having, if that is the 
only way you can get the restrictions, I think it makes a lot 
of sense. We do know a fair amount about developmental 
trajectories for criminal offending. Typically, if there is no 
offending during the adult years, it is pretty darned rare that 
they are going to be a problem later.
    Mr. Kucinich. So for example, if a person is convicted of a 
felony or domestic violence misdemeanor as a young man or 
woman, would they be a demonstrated risk purchasing a handgun 
in their 50's when their record is otherwise immaculate?
    Mr. Webster. It would be an unusual set of circumstances. I 
am not saying there is no risk.
    Mr. Kucinich. Is there any social science there at all?
    Mr. Webster. I don't know of a very specific study that 
examines exactly that. I will just say it would be an unusual 
set of circumstances.
    Mr. Kucinich. I have a question for both you and Mr. 
Honberg. Are there any good studies that show what classes of 
mentally ill people are likely to commit a crime, or 
specifically, whether the Federal definitions of mentally 
defective and committed to a mental institution are based on 
sound social science? Professor Webster.
    Mr. Webster. I have not been able to find a study that 
would define the mental health problems in the way that the 
Federal law does. I think Mr. Honberg was right on in saying 
that sort of the definitions and how we define that doesn't 
line up with how scientists and clinicians tend to do that kind 
of thing.
    So there is really nothing to go on to say for sure whether 
those set of criteria really are logical. I do agree with what 
he was saying earlier, that there are certainly a number of 
very seriously mentally ill people who might be technically 
disqualified but who probably really are not a threat. On the 
other hand, there are certainly a number of individuals when 
mental health conditions that research shows does elevate risk.
    Mr. Kucinich. Mr. Honberg.
    Mr. Honberg. There certainly have not been any studies that 
I have seen that have looked specifically at the relationship 
between mental illness and the likelihood of committing a 
violent act with a gun. But there have been studies that have 
looked at mental illness and violence, a number of them, some 
recently published. As I said, the risk factors that have been 
identified, with the caveat that the overwhelming majority of 
people are not violent, if the person is not receiving 
treatment, if the person has engaged in violence in the past 
and if the person is engaging in what is known as the co-
occurring use of alcohol or substance abuse.
    I will say that a lot of the categories that are in the 
Federal law seem to have a fairly tenuous link with violence. 
Involuntarily committed may be legitimate if the basis of the 
commitment is on the basis of being dangerous to self or 
others. But we know that there are many people who are 
involuntarily committed who are committed for other reasons 
that have nothing to do with violence.
    We also know that included in the Federal definition 
potentially are people who may have been found at one time or 
another to be incompetent, to manage, for example, their money 
for a temporary period of time, were assigned a guardian but 
after a period of time regained their competence. We also know 
that recovery from mental illness is very possible these days 
and that people can go from a time when they may not have been 
doing well to 20 or 25 years of independence and productivity. 
So the idea of having a durational limit or some criteria in 
law makes sense to us. Interestingly, California, which 
actually has a definition which in some respects is broader 
than the Federal definition, but also has durational limits, in 
one category 5 years, in another category when the person 
regains their competence. It also has procedures in place that 
would enable people to petition to have their name taken off 
the list. It makes sense to us.
    Mr. Kucinich. Obviously, everyone who may have at one time 
or another suffered from mental illness is not necessarily 
violent. Do you have any comments based on your study or 
analysis of the individuals involved in the tragedy at 
Blacksburg?
    Mr. Honberg. I don't think we know enough yet about Mr. Cho 
to know what his diagnosis was. What we do know is that there 
were some, based on the media stories that have come out, that 
there were some telltale signs. He was actually held on an 
involuntary basis on a 72 hour hold in a hospital. He was 
released on strict conditions that he participate in outpatient 
treatment. He was actually committed on an outpatient basis to 
outpatient treatment. There was clear language in that 
commitment order that said he was potentially dangerous to self 
or others.
    Then 2 years passed before the tragedy occurred. And the 
last thing I want to do is play Monday morning quarterback 
here. But this was somebody where there was clear notice that 
he was potentially at risk. What happened, as happens time and 
time again, is that the mental health system didn't do its job, 
didn't provide him with the services that he needed. There was 
no coordination between the court and the mental health system. 
So he basically went without treatment for 2 years, and his 
symptoms, it appears, only got worse.
    So in a situation like that, where there was actually a 
finding of potential dangerousness, we would have no problem 
with a person under that circumstance going on the list, at 
least for a period of time, until the dangerousness is abated.
    Mr. Kucinich. Anyone else on the panel want to comment on 
that one?
    I would like to ask Professor Webster, you wrote that there 
is little evidence that policies prohibiting the seriously 
mental ill from possessing firearms play a role in determining 
whether individuals seek care for their mental illness. You 
cite a 2001 study. Can you explain this study?
    Mr. Webster. Yes. It was a study that was a survey and 
asked individuals the reasons, individuals with mental health 
problems. They asked simply what are the reasons that you did 
not seek care. The study did not reveal any responses that 
indicated that they did not seek care because they were 
concerned about being on a list that would prohibit them from 
purchasing firearms. Only----
    Mr. Kucinich. Did you say they were or weren't?
    Mr. Webster. They were not. There were no responses 
reported in that study that had anything to do with that. The 
only thing that was even remotely close to that was that 14 
percent said that they did not seek treatment due to issues of 
stigma around that. The degree to which we conflate criminality 
with mental health, that of course creates the stigma. But that 
is a few, that is a little bit removed.
    So I think that the general objective of keeping firearms 
from, basically I am in agreement with Mr. Honberg that there 
is a set of individuals with mental illness that at least 
temporarily are going to be potentially dangerous. By 
restricting access to firearms, it should not be a barrier, 
will not be a barrier to them getting care.
    Mr. Kucinich. Do you have a comment, Mr. Honberg?
    Mr. Honberg. Yes. Again, I think we are in agreement, 
certainly on the point that we need to try to identify the 
people who are at risk and make sure that they don't get 
firearms. But I do want to emphasize just how pervasive the 
stigma that people with mental illness face and how even the 
perception that your name may go on a list, people worry about 
the time about sensitive information, about their mental health 
records being disclosed and adverse consequences as a result.
    I will just give you an example that I think you I am sure 
have heard before, that a lot of people, when they need mental 
health treatment, if they are fortunate enough to have private 
insurance, oftentimes choose to not seek reimbursement through 
their private insurance, for fear that somehow the information 
that they received that treatment will be disclosed and that 
there will be adverse consequences in terms of losing their 
jobs or impacting in their social relationships.
    So my point is that we have to be very, very careful about 
this. We certainly can't be careful enough in terms of the 
privacy protections that we put in place for people.
    Mr. Kucinich. That raised a question. One of the early 
panelists today in testimony stated the following: ``FBI data 
indicate that a small fraction of the number of Americans who 
have been involuntarily committed in mental institutions has 
been reported to the NICS. As of November 30, 1999, the FBI had 
received from all States a total of only 41 records of mentally 
ill persons. Although the number of mental health records 
provided to NICS has increased, in 2003 there were more than 
143,000, mental illness remain significantly under-reported. As 
a result of the FBI's lack of information about mentally ill 
persons, it cannot be assured that an FBI background check will 
find that a person is ineligible to possess a firearm due to 
mental illness.''
    So there is that kind of a quandary. The question that you 
raise about just the reporting, so if someone is involuntarily 
committed, let's say they have a nervous breakdown because of 
the loss of a loved one. Is this the kind of concern that you 
are----
    Mr. Honberg. I would say, just addressing broadly the 
question of why so many names aren't being reported, I think 
there are two reasons for that. I think in the process of 
giving you those reason I will get at your question.
    First, I have to make a point that a lot of States don't do 
a very good job of keeping data. We did a report last year, we 
did a national report card on States. We found that a number of 
States couldn't even provide you with an unduplicated count of 
people that they served in their mental health system in a 
given year. So that clearly, the technology has to be improved.
    But I also get back to the point I made in my testimony, 
which is that the definition is really vague and unclear. I 
don't think that States really understand who they are supposed 
to report and who they are not supposed to report. That is why 
I think it is very important to revisit the definition at this 
point.
    What Representative McCarthy is trying to accomplish in her 
legislation is very important, and we support her goals. But 
there is an aversion, perhaps for understandable reasons, based 
on what I heard earlier today, to reopen the Brady law and to 
reopen the regulations. But I really think that when it comes 
to the definition of who with mental illness should be reported 
and who shouldn't, it is important to do that. That is really 
what we are pushing for as an organization.
    Mr. Kucinich. Thank you very much.
    One of the things I want to comment on, in this discussion 
about the gun violence and the reporting of statistics, and of 
course, your presence here is to talk about the role of mental 
illness as one of the reporting categories, one of the things 
that occurs to me is the fact that we are still struggling with 
the issue of mental health parity in this country, and making 
sure that those who are mentally ill have access to the health 
care services that they need on an equal basis with people with 
other types of illnesses.
    John Conyers and I have produced a bill, H.R. 676, the 
Universal Single Pair Not-for-Profit Health Care Bill, that 
among other areas provides for fully covered mental health. 
That would be one way in which we would have a chance to look 
at those issues in much more detail and provide the kind of 
care that people obviously need.
    With respect to Professor Sorensen and to Professor 
Webster, your familiarity with various types of violence and 
their relationship to crimes of violence using implements like 
guns, you may be familiar with another proposal, H.R. 808, to 
create a Cabinet-level department of peace and non-violence, 
which looks specifically at the issues that both of you have 
talked about, domestic violence, spousal abuse, child abuse, 
violence in schools, gang violence, gun violence related to 
that, racial violence, violence against gays, police community 
conflicts. It creates an organized approach to dealing with it 
based on really reaching out to professionals such as yourself 
to get that expertise and get it into solid programs that work 
with existing groups or work with the educational system to 
teach non-violence and non-violent conflict resolution at an 
early age.
    So as I am listening to your testimony, I am thinking about 
how a new model essentially could be constructed to look at the 
problems that were presented today, which are basically 
quantitative, in effect, trying to get the data to try to 
determine where do we go from here. Even as we do that, it is 
still possible to look at creating other models that change the 
gross numbers that we see reflected in these tragedies.
    So I want to give each of you a chance for a closing 
statement, if you would like. Professor Webster.
    Mr. Webster. I would just close in saying that it is my 
sincere hope that Congress will act to make some of the reforms 
that were discussed today that really can achieve the 
objectives that truly the vast majority of Americans agree 
upon. When I say that, I mean gun owners. Virtually all kinds 
of common sense regulations that have been discussed in this 
hearing today gun owners support. There may be extremist 
organizations that don't. But when you do polling, gun owners 
agree with it.
    So I hope that we can start to make progress on this. It is 
one of the largest public health problems that we face. The 
Federal Government needs to step up to the plate.
    Mr. Kucinich. Professor Sorensen.
    Ms. Sorensen. Professor Webster said it well. The piece 
that I would add is that there have been a number of 
organizations, groups of former battered women and those who 
advocate on behalf of them who have worked hard to get those 
laws in place. It is really important, I think, that we make 
sure they are implemented and enforced so that we can ensure 
safety and greater health.
    Mr. Kucinich. Thank you.
    Mr. Honberg.
    Mr. Honberg. I just want to express my gratitude for your 
focus on broader issues around health care and access to 
quality health care. I really think that is at the crux of this 
tragedy. Without in any way trying to trivialize the importance 
of the gun issue, it has been frankly a little frustrating to 
me the last couple of weeks that there has been so much focus 
on the gun issue with respect to Mr. Cho and very few questions 
asked about, well, how could somebody like this have not gotten 
treatment.
    The answer is, because in many parts of the country, there 
is no mental health system in place. Where there is a system, 
it is crisis oriented. So you only get services when you are in 
crisis and only for so long as you are in crisis.
    It would be akin to having a system for treatment of heart 
disease where you would only get treatment if you had a heart 
attack, and then as soon as the immediate life-threatening 
event were averted, you wouldn't get any more treatment. So it 
is no wonder why so many people fall through the cracks. You 
have certainly been, over the years, a great champion for 
trying to fix our health care ills in this country and we 
really appreciate it.
    Mr. Kucinich. I thank the gentleman, and thank all the 
witnesses. Certainly the discussion that you have started today 
has the potential to be the basis of other hearings by this 
subcommittee. So the staff will certainly be in touch with you. 
I am grateful for the professional commitment that each of you 
have shown to these issues.
    This has been a hearing of the Domestic Policy Subcommittee 
of the Oversight and Government Reform Committee. The hearing 
today has been about Lethal Loopholes: Deficiencies in State 
and Federal Gun Purchase Laws. I am Congressman Dennis Kucinich 
of Ohio and the chairman of this subcommittee. I want to thank 
all the witnesses for your participation, and this committee 
stands adjourned.
    [Whereupon, at 6:43 p.m., the subcommittee was adjourned.]
    [The prepared statement of Hon. Elijah E. Cummings 
follows:]
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