[Senate Hearing 112-942]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 112-942

 THE FIX GUN CHECKS ACT: BETTER STATE AND FEDERAL COMPLIANCE, SMARTER 
                              ENFORCEMENT

=======================================================================

                                HEARING

                               before the

                  SUBCOMMITTEE ON CRIME AND TERRORISM

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                           NOVEMBER 15, 2011

                               __________

                           Serial No. J-112-52

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa, Ranking 
DIANNE FEINSTEIN, California             Member
CHUCK SCHUMER, New York              ORRIN G. HATCH, Utah
DICK DURBIN, Illinois                JON KYL, Arizona
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
                                 ------                                

                  Subcommittee on Crime and Terrorism

               SHELDON WHITEHOUSE, Rhode Island, Chairman
HERB KOHL, Wisconsin                 JON KYL, Arizona, Ranking Member
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
DICK DURBIN, Illinois                JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
CHRISTOPHER A. COONS, Delaware
                Stephen Lilley, Democratic Chief Counsel
               Stephen Higgins, Republican Chief Counsel
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
                            C O N T E N T S

                              ----------                              

                      NOVEMBER 15, 2011, 2:34 P.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Durbin, Hon. Dick, a U.S. Senator from the State of Illinois,
    prepared statement...........................................    80
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     5
Schumer, Hon. Chuck, a U.S. Senator from the State of New York...     1
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................    10

                               WITNESSES

Witness List.....................................................    31
Anderson, Heather A., Section Manager, Criminal Records Division, 
  Washington State Patrol, Olympia, Washington...................    13
    prepared statement...........................................    32
Cuthbertson, David, Assistant Director, Criminal Justice 
  Information Services Division, Federal Bureau of Investigation, 
  Washington, DC.................................................     8
    prepared statement...........................................    37
Feinblatt, John, Chief Advisor to Mayor Michael R. Bloomberg for 
  Policy and Strategic Planning, New York, New York..............    11
    prepared statement...........................................    45
Kopel, David B., Adjunct Professor, Advanced Constitutional Law, 
  Denver University, Strum College of Law, Denver, Colorado......    17
    prepared statement...........................................    47
Maisch, Patricia, Tucson, Arizona................................    15
    prepared statement...........................................    76

                               QUESTIONS

Questions submitted to David Cuthbertson by Senator Grassley.....    82
Questions submitted to David Cuthbertson by Senator Klobuchar....    85
Questions submitted to Prof. David B. Kopel by Senator Hatch.....    84

                                ANSWERS

Responses of David Cuthbertson to questions submitted by Senators 
  Grassley and Klobuchar.........................................    86
Responses supplement--redacted of David Cuthbertson to questions
  submitted by Senators Grassley and Klobuchar...................    91
Responses of Prof. David B. Kopel to questions submitted by 
  Senator Hatch..................................................    94

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Bloomberg, Hon. Michael R., Mayor, New York, New York,
    prepared statement...........................................    35
Electronic correspondence from Ranking Member Chuck Grassley to
  Hon. Hillary R. Clinton, Secretary of State, U.S. Department of 
  State, November 15, 2011, and Kenneth Melson, Acting Director, 
  Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. 
  Department of Justice, June 16, 2011...........................    97
Veterans Second Amendment Protection Act, Hon. Richard Burr, a 
  U.S. Senator from the State of North Carolina, and Hon. Jim 
  Webb, a U.S. Senator from the State of Virginia, October 13, 
  2011, press release............................................    96
 
  THE FIX GUN CHECKS ACT: BETTER STATE AND FEDERAL COMPLIANCE, SMARTER
                              ENFORCEMENT

                              ----------                              


                       TUESDAY, NOVEMBER 15, 2011

                      United States Senate,
               Subcommittee on Crime and Terrorism,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:34 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Chuck 
Schumer, presiding.
    Present: Senators Schumer, Whitehouse, Grassley, Sessions, 
and Hatch.

            OPENING STATEMENT OF HON. CHUCK SCHUMER,
           A U.S. SENATOR FROM THE STATE OF NEW YORK

    Senator Schumer. The hearing will come to order. I want to 
welcome the witnesses, and there are many gun violence victims 
and family members in the audience. I would like to thank you 
all for being here. Maybe you can stand up--no applause, 
please--so we can acknowledge you. Please stand if you are 
here. Thank you all very much for being here.
    First, I want to thank my friend and colleague Senator 
Whitehouse. He is the Chair of this Committee. He convened this 
hearing, and he is allowing me as sponsor of the bill to serve 
as Chairman for the day.
    Making sure that guns stay out of the hands of criminals, 
drug addicts, violent abusers, and the mentally ill has been 
important to me as long as I have been in Congress. I believe 
there is a right to bear arms, but I also believe it is not 
absolute, just like the First, Third, Fourth, Fifth, Sixth, et 
cetera, Amendments are not absolute. And just as we have limits 
on the First Amendment--anti-pornographic laws, laws that say 
cannot falsely scream ``Fire'' in a crowded theater, libel 
laws--there are reasonable limits on the Second Amendment. I do 
not believe it should be through a pinhole and then see the 
First, Third, Fourth, Fifth, and Sixth Amendments expansively, 
but I also believe that limits are very reasonable, and we are 
talking among the most reasonable limits here in the bill that 
we have professed. And that is why I have worked hard to make 
sure that the National Instant Criminal Background Check System 
was enacted, implemented, and in place. Since it went online in 
1998, the background check system has stopped more than 1.6 
million people who are prohibited by law from owning guns from 
going through with their purchases.
    I want to say that again. That is 1.6 million people, 
criminals, fugitives from justice, domestic abusers, drug 
addicts, might not have been prohibited from buying guns if not 
for this system.
    And it is my belief that NICS is the textbook example of a 
law that is well balanced and well tailored. It poses no threat 
to millions and millions of law-abiding gun owners across the 
country who do have the right to bear arms, while keeping guns 
out of the hands of those who are most likely to misuse them to 
terrible ends.
    Now, let me be clear about this. I understand that in large 
parts of my State of New York and across the country gun 
ownership is a way of life, and I respect that. The Heller 
decision, unlike some of my colleagues on this side of the 
aisle, was a decision I welcomed because I have consistently, 
as I mentioned, talked about the right to bear arms in the 
Constitution. I believed it in before Heller, but as I 
mentioned, no amendment is absolute. Reasonable limitations are 
placed on the First, Third, Fourth, Fifth, and Sixth 
Amendments, and should be. So should they be on the Second 
Amendment. And some of my friends on the other side of the 
aisle who simply believe that there should be no limit 
whatsoever--we once had a witness come before a House 
Subcommittee on Judiciary who said people should have the right 
to buy bazookas or tanks--go a little far.
    So NICS has consistently been viewed as an appropriate way 
to carry out the Government's aim of protecting individuals' 
rights and keeping people safe. It meets the balancing test, 
that there is a constitutional right but it has to be balanced. 
Ever since it replaced State-led checks that were struck down 
by the Supreme Court in U.S. v. Printz, getting NICS in place 
was a major watershed event in public safety. I am proud of my 
role in crafting it when I was in the House of Representatives.
    But just having it in place and on the statute books is not 
enough. We have to make sure that States and Federal agencies 
are actually turning in the records that they need to turn in. 
The background check database is only as good as the records it 
stores.
    Today we are going to examine NICS' successes and failures 
so far and examine how we can close gaps in our system. Here 
are some facts from the FBI: 52 out of 61 Federal agencies have 
reported no mental health records into NICS; 58 agencies have 
reported zero records of drug abusers, including the DEA, the 
Department of Defense, and ICE; 47 out of 61 have reported no 
records at all, although I understand that some have reported 
to another database, the Interstate Identification Index, or 
the III; 23 States and the District of Columbia have submitted 
fewer than 100 mental health records to the NICS database; 17 
States have submitted fewer than 10 records and 4 States have 
submitted none at all.
    GAO estimates that there are still 1.5 million relevant 
mental health records outstanding, so the data suggests that 
our gun background check system is still riddled with 
loopholes, and this is only the beginning.
    The truth is we do not even know the full extent of the 
noncompliance with the NICS law. That is because many States 
have failed to even give an estimate to the Federal authorities 
on how many relevant records exist, let alone turn these 
records over to the national database. This has apparently 
prevented the Attorney General from being able to provide a 
comprehensive list of which States are in compliance with the 
NICS reporting requirement and which are not.
    This lack of accountability is totally unacceptable. 2011 
was the first year that the Attorney General could withhold 3 
percent of a State's Byrne/JAG funding at his discretion for 
having fewer than 50 percent of its relevant records in the 
NICS database. So far the Attorney General has declined to do 
this.
    So today I am calling on Attorney General Holder to fully 
enforce the law and begin cutting funds for States that fail to 
meet the reporting requirements. We will never get States to 
comply with the reporting requirements if the Federal 
Government is not following through and imposing the penalties. 
Right now, based on numbers that we do have so far, at least 
eight States would risk losing dollars if the Justice 
Department were fully enforcing the law. They are--since it is 
not Iowa, I will be happy to read the list--Alaska, Delaware, 
Georgia, Kentucky, Louisiana, New Hampshire, Vermont, and 
Wyoming. There are likely to be many more.
    We cannot continue to turn a blind eye on this failure to 
comply with the law. If we do, we'll be continuing a very bad 
trend. As a Nation, it seems we are moving backward when it 
comes to this area of protecting people from people who should 
not have guns.
    Earlier this week, the New York Times reported on how many 
States are actively taking steps to make it easier for felons 
to regain their right to own a gun. In some States it is now 
easier for a felon to legally reacquire a gun than to regain 
his or her right to vote.
    In addition, as soon as tomorrow, the House of 
Representatives is expected to approve a concealed-carry 
measure. After that it would be sent to the Senate. Two years 
ago, we defeated this measure on a very close vote. This time I 
am not so sure what will happen. The legislation would take the 
carefully crafted gun laws in New York and other States and 
basically tear them up. It seems perverse that the first gun-
related measure that this Congress plans to pass since the 
Tucson shooting is one that seeks to dismantle States' 
abilities to protect their own citizens. It is like a bad 
dream.
    Clearly, our Nation's gun laws are under assault enough as 
it is, so we should not make matters worse by shrinking from 
the full enforcement of the laws that remain on the books. That 
is why it is time to toughen our approach when it comes to 
NICS.
    In 2007, we responded to the horrible tragedy at Virginia 
Tech in which 32 people were killed by a gunman who had been 
adjudicated mentally ill, but whose records never made it into 
the background check system. I took the lead in drafting 
improvements to NICS to increase incentives of States to get 
their records into the system and to allow the Attorney General 
to withhold benefits from States that did not. This law, the 
NICS Improvement Amendments Act, also incentivizes States to 
give those who have been adjudicated to be mentally disabled to 
have that judgment removed from their record if they are no 
longer dangerous to themselves or others.
    The law is well balanced. I actually negotiated many 
provisions of it with Senator Coburn from Oklahoma, who 
generally does not agree on the issue of gun control with me, 
and it was passed with the support of the National Rifle 
Association. Most important, the NICS Improvement Amendments 
Act had a palpable impact on the quality of the Federal 
background check process. For years after the mass shooting at 
Virginia Tech, the total number of Federal and State mental 
health records in the NICS Index has roughly tripled, from 
500,000 to 1.3 million. However, there are still about 1.5 
million mental health records missing, according to GAO 
estimates.
    In addition, it remains the case that very few Federal 
agencies have reported any relevant records into the NICS 
database. I am very sorry to say that, despite its successes, 
the NICS database, despite improvements, remains dangerously 
incomplete.
    For example, it is entirely possible that Jared Loughner 
might not have bought the Glock that so tragically killed six 
people and wounded 13 others, including Congresswoman Gabrielle 
Giffords that horrible day in Tucson, almost 11 months ago, if 
the army had reported the fact that he admitted drug use and 
was denied enlistment into the army. If that had been in the 
NICS database, he would have been denied the right to purchase 
a gun.
    I do not want there to be any more ``what ifs.'' We want to 
make sure that we marshal every resource we have at our 
disposal to make the background check database, which we all 
agree should exist, complete once and for all.
    Gun violence is irrevocable and tragic, but it seems even 
less understandable when there is a chance that it could have 
been prevented. That is why we have introduced the Fix Gun 
Checks Act here in the Senate. The bill would improve 
incentives for the States to report records that they have into 
the NICS database and require the Attorney General to start 
withholding funds from those that do not.
    Specifically, the bill would require DOJ to withhold 15 
percent of a State's Byrne/JAG money rather than allowing DOJ 
to withhold 4 percent of the money, beginning in 2013.
    The Fix Gun Checks Act would require everyone to redouble 
their efforts if States want to continue to receive grant 
money. In addition, this bill would also close the private 
sales loophole once and for all. An estimated 40 percent of gun 
sales are conducted by private sellers which are not licensed 
by the Federal Government. Our bill would require these sales 
to be subject to background checks as well.
    Finally, the bill would require each Federal agency to 
report to the Attorney General twice a year the relevant 
records it has in its possession.
    I know that a lot of you in this room have been deeply 
affected by this issue. I know the pain in your hearts. And I 
want to thank all of you for doing what is really the noble 
thing. Instead of simply cursing the darkness that I know 
envelops your life because of the losses that you have 
sustained, the injuries you have sustained as well, but instead 
you are trying to light a candle, and that is a noble thing.
    So we are looking forward to hearing from the witnesses 
today to get to the bottom of how we can improve the background 
check system and get it working better for law-abiding 
citizens, and with that let me turn it over to Senator 
Grassley.

           OPENING STATEMENT OF HON. CHUCK GRASSLEY,
             A U.S. SENATOR FROM THE STATE OF IOWA

    Senator Grassley. Like you, Mr. Chairman, substituting for 
another Senator, I am substituting for Senator Kyl, who is a 
Member of the Committee on Debt Reduction, and they are working 
very hard these next few days to get a recommendation to the 
Senate.
    I would ask consent that a number of documents I am going 
to refer to be placed in the record, and then I was going to 
refer to the--I was asking for permission to put some things in 
the record that I am going to refer to.
    Senator Schumer. Without objection, all of Senator 
Grassley's materials will be put in the record at this point.
    [The information appears as a submission for the record.]
    Senator Grassley. And I am not going to repeat what you 
said about the Virginia Tech thing because it was the genesis 
of legislation that passed both the House and Senate by 
unanimous consent. So, obviously, there was a strong feeling at 
that time of a need.
    Despite the strong bipartisan support, the NICS Improvement 
Act was, in fact, not a perfect bill, and I will give you a 
good example. It stripped thousands of veterans and their 
beneficiaries of their Second Amendment rights simply because 
they have a fiduciary appointed on their behalf. Oftentimes a 
fiduciary is appointed simply for managing disability 
compensation pensions or survivors. Under an interpretation by 
the Department of Veterans Affairs, veterans who have a 
fiduciary appointed are deemed ``mentally defective,'' are 
reported to the FBI's NICS system and prohibited from 
purchasing firearms. Under the NICS Improvement Act, a 
bipartisan bill, we have around 114,000 veterans and their 
beneficiaries have been automatically denied Second Amendment 
rights. It is a terrible irony that veterans who have served 
their country on the battlefield, have been entrusted with our 
national security, and have been provided firearms by their 
very own Government while they were in uniform are the same 
people that this Improvements Act harmed by taking away Second 
Amendment rights, all without a hearing or formal adjudication.
    We just honored and celebrated Veterans Day last Friday, 
yet we are here debating new legislation to restrict Second 
Amendment rights of citizens without fixing the unintended 
consequences of our last major gun law.
    While the horrific events in Tucson are still fresh in our 
memories, as we discuss new gun control laws we also need to 
move forward on bipartisan legislation such as the Veterans 
Second Amendment Protection Act. Introduced by Senators Burr 
and Webb, this bill would fix the unintended consequences to 
the thousands of veterans caused by the Improvement Act.
    Today's hearing offers us another opportunity to discuss 
illegal firearms trafficking and the Government's efforts to 
stop it. At the forefront of this is the Department of 
Justice's failed Operation Fast and Furious where the ATF 
knowingly allowed illegal purchasers to buy guns. The more that 
we learn about Fast and Furious, the more we have discovered 
that senior Justice Department officials knew or should have 
known about nearly 2,000 funds ending up in the hands of 
criminals, including drug cartels in Mexico.
    At the first House oversight hearing on Operation Fast and 
Furious, multiple ATF agents testified that fear spread through 
the Phoenix Field Division every time there was news of a major 
shooting incident. Specifically with regard to Congresswoman 
Giffords' shooting, one agent said, ``There was a state of 
panic, like `Let's hope this is not a weapon from that case,'--
`that case' meaning Fast and Furious.''
    The Fast and Furious operation was failed in concept design 
and execution. As the Attorney General said last week, it 
should never have happened, and the Justice Department 
officials that knew about this program, including those who 
allowed false statements to Congress, need to be held 
accountable. I thought it was fitting that late last week 
Attorney General Holder finally wrote the family of Agent 
Terry. In his letter, he stated he was sorry for their loss, 
although he refused to take responsibility for the Department's 
role in Agent Terry's death.
    At the root of Fast and Furious and a lot of rhetoric 
surrounding gun control legislation has been the gun-
trafficking statistics provided by ATF. These unclear 
statistics have fueled the debate and contributed to 
undertaking such a reckless operation as Fast and Furious.
    For example, in 2009, both President Obama and Secretary of 
State Clinton stated that 90 percent of the guns in Mexico were 
from the United States, but that statistic later changed to 90 
percent of the guns that Mexico submitted for tracing to ATF 
were from the United States. And now this year that number has 
become 70 percent of the guns submitted by the Mexican 
Government for tracing were from the United States. So you can 
reasonably ask: What are the real numbers?
    Articles discussing the 70-percent number misrepresent the 
facts. As I pointed out in a letter to then-ATF Acting Director 
Melson in June 2011. First, there are tens of thousands of guns 
confiscated at crime scenes annually in Mexico. The Associated 
Press stated in 2009 that over 305,424 confiscated weapons are 
locked in vaults in Mexico. However, the ATF acknowledged to my 
staff in a briefing on July 29, 2011, that ATF does not have 
access to the vault in Mexico described in the story.
    ATF also acknowledges that only a portion of the guns 
recovered in Mexico are actually submitted to the U.S. for 
tracing. In a November 8, 2011, court filing, the chief of 
ATF's Firearms Operations Division made a declaration saying, 
``It is important to note, however, that ATF's e-trace data is 
based only on gun trace requests actually submitted to ATF by 
law enforcement officials in Mexico and not on all of the guns 
seized in Mexico.''
    That court filing further states that, ``In 2008, of the 
approximately 30,000 firearms that the Mexican attorney 
general's office informed ATF that it had seized, only 7,200, 
or about one-fourth, of those firearms were submitted to the 
ATF for tracing.'' So if Mexico submits only 25 percent of the 
guns for tracing, then the statistics could be grossly 
inaccurate one way or the other.
    The discrepancies in number do not stop there. The ATF also 
informed my staff that the e-trace-based statistics could vary 
drastically by a single word's definition. For example, the 70-
percent number was generated using a definition of ``U.S.-
sourced firearms'' that includes guns manufactured in the 
United States or imported through the U.S. Thus, the 70-percent 
number does not mean that all the guns were purchased at a U.S. 
gun dealer and then smuggled across the border. It could simply 
mean that the firearms was manufactured in the United States.
    So when my staff asked ATF how many guns traced in 2009 and 
2010 were traced to the United States gun dealers, the numbers 
were quite shocking in comparison to the statistics we always 
hear. In 2009, of the 21,313 guns recovered in Mexico and 
submitted for tracing, only 5,444 were sourced to U.S. gun 
dealers. That is around 25 percent. For 2010, of the 7,971 guns 
recovered in Mexico submitted for tracing, only 2,945 were 
sourced to U.S. gun dealers. That is 37 percent. Either way, 
both are a far cry from the 70 percent we keep using, not to 
mention that guns in 2009 and 2010 from gun dealers could 
include some of the nearly 2,000 firearms walked as a part of 
the Justice Department's Operation Fast and Furious.
    So we need clearer data from ATF and from Mexico. Mexico 
needs to open up the gun vaults and allow more guns to be 
traced, not just the ones that they select. We need to know if 
military arsenals are being pilfered as a source, as media 
articles have claimed the State Department points to in 
diplomatic cables.
    To that end, I sent a letter today to Secretary of State 
Clinton seeking all diplomatic cables discussing the sources of 
arms from Mexico and Central and South America. I believe this 
information is relevant to Congress given I discovered a July 
2010 cable as part of my Fast and Furious investigation. That 
cable, titled ``Mexico's Weapons Trafficking: The Blame Game,'' 
seeks to dispel myths about weapons trafficking. Among other 
things, the State Department authors discussed what they 
perceived as ``myth, an iron highway of weapons flows from the 
United States.'' These cables are vitally important to 
Congress' understanding of this problem. Further, given they 
appear in documents that ATF submitted to the Congress as part 
of Fast and Furious, there should be no reason for the State 
Department to withhold them as part of our legitimate oversight 
even if they are classified.
    There is a lot more to be said about the specific problem 
with the legislation that we are discussing today. I plan to 
ask some questions to flesh out some of these problems and make 
sure that we pass a bill that is more perfect than what we 
passed last time by a unanimous vote denying 114,000 veterans 
the right to bear arms.
    Senator Schumer. Thank you. I want to thank you, Senator 
Grassley, and we would welcome working with you. The last bill 
I think was a large improvement. It was bipartisan, as you 
mentioned, passed unanimously. I worked with Senator Coburn on 
it. But there are certainly ways it can be improved, both from 
the ways I am talking about and perhaps the ways you are 
talking about as well. So I would like to work with you on it.
    Senator Grassley. Thank you.
    Senator Schumer. Great. Now let me introduce our witnesses, 
and I want to welcome Senator Hatch to the hearing and thank 
him for attending.
    Our first witness is Assistant Director David Cuthbertson 
from the Federal Bureau of Investigation, where he leads its 
Criminal Justice Information Services Division and oversees the 
National Instant Criminal Background Check System, the NICS 
system. Prior to this position, he served as special agent in 
charge of the El Paso Division. He has investigated Mexican 
drug-trafficking organizations, white-collar crime, drug 
trafficking, and violent crime. Mr. Cuthbertson graduated magna 
cum laude from William Jewell College, where he earned a 
bachelor of science in business administration and economics.
    John Feinblatt is the chief advisor for policy and 
strategic planning for Mayor Michael Bloomberg of New York 
City. He previously served as New York's criminal justice 
coordinator and in his current position leads the mayor's 
efforts in national coalitions such as Mayors Against Illegal 
Guns to prevent access to illegal firearms in cities around the 
country, and Mayor Bloomberg was planning to attend but could 
not at the last minute because of the things people have read 
in the newspapers. And so we want to welcome Mr. Feinblatt and 
thank Mayor Bloomberg for his interest, which I know continues.
    Heather Anderson is the section manager for access and 
collision record system of the Washington State Patrol where 
she oversees efforts of the State to participate in the NICS 
database. She has worked in the law enforcement support field 
for 18 years and spent 13 years with the Washington State 
Patrol.
    We are really honored to have Patricia Maisch, a survivor 
of the recent shooting in Tucson, Arizona. As you may remember, 
she wrestled a semiautomatic clip of ammunition out of Jared 
Loughner's hands, the alleged shooter, thereby helping to end 
an already awful day, and almost certainly saving countless 
lives. She is from Tucson, Arizona, where she currently owns 
her own business as a heating and air conditioning contractor, 
and we particularly want to thank you for being here, Ms. 
Maisch, and for your heroism.
    Finally, David Kopel is an adjunct professor of advanced 
constitutional law at Denver University, Strum College of Law, 
the research director of the Independence Institute, and an 
associate policy analyst with the Cato Institute. He went to 
Brown University and received his J.D. from the University of 
Michigan Law School.
    Witnesses, your entire statements will be read into the 
record. I would ask each of you to keep your statements to 5 
minutes.
    David Cuthbertson will lead off, and then we will go from 
his left to the end of the panel. Thank you.

 STATEMENT OF DAVID CUTHBERTSON, ASSISTANT DIRECTOR, CRIMINAL 
             JUSTICE INFORMATION SERVICES DIVISION,
        FEDERAL BUREAU OF INVESTIGATION, WASHINGTON, DC

    Mr. Cuthbertson. Good afternoon, Chairman Schumer, Senator 
Grassley, and Members of the Committee. It is my privilege to 
address you today regarding the role that record availability 
and completeness play in the operation of the National Instant 
Criminal Background Check System, or NICS, and the continuing 
efforts of the FBI to increase the quality and quantity of 
information available to the NICS.
    Since it became operational in 1998, the NICS has been 
essential in ensuring that individuals prohibited from 
possessing firearms under Federal or State law do not acquire 
them from Federal firearms licensees. The ability of the NICS 
to effectively and efficiently determine firearm eligibility 
depends on the accuracy and completeness of the information 
made available to it.
    To strengthen the NICS, the NICS Improvement Amendments 
Act, or NIAA, was signed into law on January 8, 2008. Upon its 
passage, the FBI implemented a number of initiatives to 
intensify existing outreach efforts to assist States, tribes, 
Federal agencies, and departments in their efforts to identify 
and make available to the NICS firearms-prohibiting 
information.
    The FBI developed numerous resource and training materials, 
coordinated NIAA efforts with our Federal agency counterparts 
regarding administration of the NIAA, and has conducted 
internal outreach throughout the FBI regarding disposition and 
record reporting to the Interstate Identification Index, or 
III, and the National Crime Information Center, or NCIC.
    From May 2008 to September 2011, the FBI coordinated 15 
external meetings with Federal agencies and departments, 
including the Department of Defense and branches of the 
military, regarding agency-held information needed by the NICS. 
Through extensive outreach efforts, the FBI has also provided 
over 30 NIAA training opportunities; participated in mental 
health conferences at the State and national level; dedicated 
staff to address technology, legal, and audit concerns; 
conducted approximately 25 meetings with State NIAA task 
forces, in addition to three regional meetings with numerous 
State agencies; and offered guidance on a variety of matters, 
including the development of a qualifying relief from mental 
health disabilities program.
    Comprehensive and ongoing outreach efforts to educate 
local, State, Tribal, and Federal agencies about the NICS and 
the overall importance of the NIAA efforts are producing 
success and strengthening partnerships. Since 2009, 14 States 
have been awarded grant funding under the NIAA. Since the 
passage of the NIAA to the current date, the number of State-
submitted records to the NICS Index has more than doubled and 
the number of States with less than 100 records has decreased.
    On the Federal side, more recent advancements in enhancing 
the electronic submission of records to the NICS include the 
efforts of several Federal agencies. The FBI is currently 
working with DOJ components and the Department of State toward 
record identification and electronic submission to the NICS.
    However, many State systems lack adequate infrastructure to 
allow for the effective and efficient sharing of data between 
local, county, and State-level agencies. Providing technical 
guidance to address the needs of 50 different State systems is 
a challenge. In addition to obtaining grant funding under the 
NIAA, all States have the added requirement of creating and 
implementing a qualifying relief from mental health 
disabilities program, which is time and labor intensive.
    Despite the FBI's intense outreach efforts and resulting 
successes, many records, such as mental health records, are 
still unavailable to the NICS. Many States are challenged by 
existing privacy laws that bar the sharing of mental health 
information. The FBI in a consulting capacity assists States 
seeking to draft legislation permitting the sharing of mental 
health information with the NICS. A limited number of States 
have overcome this information-sharing obstacle, and others are 
in the process.
    Progress has been made in advancing awareness of the NIAA 
and its purpose. The amount of records submissions to the NICS 
Index continues to rise. Just prior to the passage of the NIAA, 
approximately 5.1 million records were maintained in the NICS 
Index. Approximately 500,000 were mental health records.
    Currently, the records maintained in the NICS Index have 
increased by approximately 41 percent, and mental health 
records have increased by approximately 153 percent. However, 
the improvements are not spread equally across the board. 
Several States have significantly increased the number of 
records submitted to the NICS Index, yet some Federal agencies 
have only recently begun submission.
    I appreciate the opportunity to review some of the FBI's 
recent work to improve the completeness and accuracy of the 
information made available to the NICS. Through these efforts 
the FBI continues to ensure that persons prohibited from 
possessing firearms pursuant to State or Federal law do not 
acquire them from an FFL and that law-abiding citizens are able 
to acquire them without undue delay. Thank you.
    [The prepared statement of David Cuthbertson appears as a 
submission for the record.]
    Senator Schumer. Well, thank you, Mr. Cuthbertson, 
Assistant Director, not only for your excellent testimony but 
for staying within the 5 minutes. That is a good starting 
example.
    And now I am going to break that example by calling on--I 
mentioned earlier today that Chairman Whitehouse was generous 
enough to let us have this hearing and allow me because of my 
interest in this issue to chair it, and he has been nice enough 
to come by, and I am just going to interrupt our panel to let 
him say a few words since, after all, he is the Chairman.

         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
         A U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. Thank you very much, Senator Schumer.
    I just wanted to compliment Senator Schumer on his vigorous 
pursuit of these issues which are so important to New York and 
to Rhode Island and to the rest of the country. Many of our 
communities continue to be plagued by gun violence. Congress 
recently has suffered a real tragedy as a result of gun 
violence, and too often it is enabled by loopholes in our gun 
laws that allow the purchase of military-style weapons in great 
bulk or that deny law enforcement officers the information they 
need to go about doing their jobs in a responsible way. And I 
think it is important that we work to close those loopholes. We 
can have different ideas of the extent to which various gun 
laws should or should not be extended, but there really should 
be a bipartisan agreement that we should effectively and 
sensibly enforce the gun laws that we have.
    So we look forward to continuing to work with you in this 
Subcommittee, Senator Schumer. We thank you for taking the lead 
on this issue, and I am very happy to have you be the Chair of 
the day in this Subcommittee, and I thank Senator Hatch for 
being here and for attending and for being gracious about my 
little interruption of the order of proceeding here.
    Thank you, Senator Schumer.
    Senator Schumer. Thank you, Senator Whitehouse. Chairman 
Whitehouse has certainly stayed within the 5 minutes.
    Mr. Feinblatt.

STATEMENT OF JOHN FEINBLATT, CHIEF ADVISOR TO MAYOR MICHAEL R. 
               BLOOMBERG FOR POLICY AND STRATEGIC
                  PLANNING, NEW YORK, NEW YORK

    Mr. Feinblatt. Good morning, Chairman Schumer, Senator 
Grassley, Members of the Subcommittee. Thank you for the 
opportunity to be here today. I am John Feinblatt, chief policy 
advisor to Mayor Michael Bloomberg, who very much regrets that 
he cannot be here with us today.
    Ten months ago, the Nation turned its attention to Tucson, 
Arizona, and watched in horror as 6 people were gunned down and 
13 others were seriously injured, including Congresswoman 
Giffords. Since that day, more than 10,500 Americans have been 
shot to death in senseless crimes. That is 34 Americans a day, 
and that means on a daily basis we experience a tragedy larger 
than the one we had at Virginia Tech.
    Even more tragic is that we could have prevented some of 
these deaths.
    Over the past 5 years, Mayor Bloomberg and Mayor Tom Menino 
of Boston have worked to build a bipartisan coalition of more 
than 600 mayors dedicated to honoring the Second Amendment and 
also dedicated to fighting gun crime by strengthening 
enforcement of existing laws and closing loopholes that are a 
criminal's best friend.
    The tragic fact is that often background checks just do not 
happen or they do not work because the information that should 
be in the background check system just is not.
    After the Virginia Tech massacre, both Houses of Congress 
unanimously passed a law designed to ensure that Federal 
agencies and States submit the necessary mental health, 
domestic violence, and drug abuse records to the background 
check system. And as a result, the number of records in the 
background check system has risen substantially.
    Still, according to a new analysis released today by Mayors 
Against Illegal Guns, 23 States have contributed fewer than 100 
mental health records. Seventeen of those States have submitted 
fewer than ten records; four have not shared any at all.
    Federal agencies are not doing much better: 52 out of 61 
Federal agencies have reported zero mental health records; 58 
Federal agencies have reported zero records of drug abusers, 
including agencies such as the DEA, the Department of Defense, 
and ICE.
    To understand why some States are succeeding and others are 
failing, our coalition talked to more than 60 officials in 49 
different States. We found that States face a complex set of 
challenges. But we also learned that a few common themes united 
those States that are successfully sharing information.
    First, it is clear that leadership matters. Nine out of the 
10 States with the highest submission rates have taken active 
steps to overcome logistical and legal barriers by passing 
record-reporting laws.
    Second, funding matters. States with access to Federal 
grant funds are reporting on average nearly twice as many 
records as States that do not receive those funds. And yet 
Congress has appropriated less than 5 percent of the funds it 
authorized for this vital grant program.
    Third, it is clear that Congress needs to impose penalties 
with real teeth for States that are failing to submit records. 
Today States stand to lose only a combined $12.7 million in 
Federal funding if they do not meet their reporting 
requirements.
    And, fourth, we learned that many States still do not know 
what mental health and drug abuse records should be sent to 
NICS. The Justice Department should issue clear guidance and 
make it easily accessible.
    In addition, the President should issue an Executive order 
requiring all Federal agency heads to certify to the Attorney 
General, in writing, that their agencies have submitted all the 
necessary records to the national background check system.
    This is about enforcing the law, plain and simple, and 
nothing else. Both Congress and the President have a 
responsibility to do that and must take action if our laws are 
to be upheld and our public is to be protected.
    These four steps are all necessary and urgent. But, 
unfortunately, they are not enough, because if you buy a gun 
from a so-called occasional seller at a gun show or online or 
in the parking lot of a supermarket, Federal law does not 
require a background check, no matter if you buy one gun or 20. 
This loophole feeds the voracious market for illegal guns, and 
an estimated 40 percent of all U.S. gun sales are not subject 
to a Federal background check.
    Passing the Fix Gun Checks Act Senator Schumer introduced 
earlier this year would increase the incentives for States to 
ensure that all records that should be in NICS are. It would 
also close the private sale loophole once and for all. A 
bipartisan poll commissioned by our mayors showed that 86 
percent of the public and 81 percent of gun owners want every 
gun purchase to go through a background check system.
    Last spring, our coalition launched the National Drive to 
Fix Gun Checks. Today the number of Americans who have signed 
our petition in support of that effort has passed 400,000. I 
would like those names to be included in the record today.
    Senator Schumer. Did you say 400,000?
    Mr. Feinblatt. 400,000.
    Senator Schumer. Could we just have a summary of what was 
put in?
    [Laughter.]
    Senator Schumer. Because it is a lot of names to put in the 
record.
    Mr. Feinblatt. It is a lot of names, and we took----
    Senator Schumer. We will take that under advisement, but 
somehow we will work something out so we certainly put into the 
record what you have talked about.
    Mr. Feinblatt. A few of those of the 400,000 are with us 
today. All of them have lost loved ones to gun violence, and I 
hope that this Committee listens to their stories and acts 
swiftly to pass the Fix Gun Checks Act to prevent future 
tragedies. Thank you.
    [The prepared statement of John Feinblatt appears as a 
submission for the record.]
    Senator Schumer. Thank you, Mr. Feinblatt, and thank you 
for the good job you do in New York City helping us fight 
crime.
    Ms. Anderson.

  STATEMENT OF HEATHER A. ANDERSON, SECTION MANAGER, CRIMINAL 
               RECORDS DIVISION, WASHINGTON STATE
                  PATROL, OLYMPIA, WASHINGTON

    Ms. Anderson. Good afternoon, Senators and Members of the 
Subcommittee. Thank you for this opportunity to testify today. 
For the past 10 years, the Washington State Patrol has 
maintained the responsibility of management, training, support, 
and audits of our local law enforcement agencies that conduct 
NICS checks for gun transfers and issuance of State concealed 
pistol licenses.
    WSP oversees the NICS program within Washington State, 
ensuring agencies understand the processes. Agencies conduct 
NICS checks according to the rules set forth by the FBI and 
applicable State and Federal laws. WSP verifies appropriate 
usage of NICS and proper retention and destruction of the 
checks. They also work with other State and local entities to 
ensure submission of records into the NICS Index. In carrying 
out this role, WSP has experienced a litany of obstacles, 
particularly in the context of mental health record sharing. 
These include a coordination with other State agencies, 
logistical hurdles, technical hurdles, data issues, training, 
and funding, just to name a few.
    That said, Washington has been very successful in moving 
more records into NICS. Currently, WSP works with NICS, the 
Department of Social and Health Services, and the 
Administrative Office of the Courts to ensure mental health 
records are submitted, validated, and canceled as necessary. In 
2004, DSHS provided NICS with all of the historical mental 
health committal information in an initial transfer of over 
30,000 records. They continued to provide monthly submissions 
thereafter via a CD in the mail.
    In working with Social Services, we found pockets of 
information that were missing. If a person had private 
insurance, Social Services may not have a mental health record. 
Additionally, not all records provided to us met the criteria 
to deny a person a gun. WSP continues to work with the State 
and local entities to clean the existing records that have 
already been submitted to the NICS Index.
    In 2009, the courts took over data submittal for mental 
health records. This was a better fit. Court databases contain 
most committal records regardless of insurance types. 
Unfortunately, the court was only able to provide day-forward 
information. They have a legacy database. So between the 
existing data provided up to 2009 by the Social Services and 
the new data provided by the courts, Washington is providing as 
much information as possible, but we still enter missing 
records provided by State and local entities upon request. The 
court set up an electronic data transfer process with NICS, and 
that is getting us closer to real-time data.
    Another large issue for Washington is the overall 
understanding for agencies that conduct background checks. The 
process is not always clear to them. Ongoing training by the 
NICS staff over the years has educated our decentralized State, 
but the need for training remains a priority due to turnover in 
personnel at local law enforcement and changes in 
interpretations. The commitment of NICS to partner with the 
State Patrol is providing the best possible service despite the 
obstacles and continued issues that we face.
    WSP has reached out to various State and local entities to 
work as a united force to ensure compliance with State and 
Federal laws and to work together to improve data processes and 
requirements. Washington is hosting NICS and five other States 
on December 7th for a NICS Improvement Amendments Act 
discussion.
    We are also working with the courts, prosecutors, and 
judges on a number of issues pertaining to NICS to better our 
forms and consistency and provide more education.
    Lastly, because of the efforts of so many within 
Washington, there is continued improvement during our State's 
NICS triennial audits with the FBI. We have a long way to go. 
We still need to find good solutions for the fact that many 
misdemeanor crimes of domestic violence are not all entered 
into our State criminal history repository because the courts 
have reported that many of these charges are not followed up 
with fingerprints due to their workload. If a person is not 
fingerprinted, the information is not in the criminal history 
repository. WSP is not connected to the court database to pull 
data from. These are legacy databases. The court information is 
name based, and the State Patrol data results from fingerprint 
cards.
    State misdemeanor and felony warrants are not all forwarded 
to the National Crime Information Center. There is much 
stakeholder work to accomplish this move of, on average, 
165,000 misdemeanor warrants and 19,000 felony warrants, and we 
are currently working on this issue.
    The ATF has determined that Washington does not meet the 
requirements of the NIAA for firearm restoration of rights and 
a relief program. This has been something we have worked on 
with other State agencies, and we are not there yet. We have 
not been able to obtain the funding or any opportunities for 
grant funding because of that.
    I am honored to be here today to talk about Washington's 
successes and the roads that we still need to travel. Continued 
Federal funding of the NIAA for years to come will enable 
States to improve technology for more accurate and faster 
reporting to the NICS Index. The funding will allow States to 
bridge legacy data systems not unlike ours and ensure 
information can be made available. The power of more 
information can be measured in lessened
    Thank you.
    [The prepared statement of Heather A. Anderson appears as a 
submission for the record.]
    Senator Schumer. Thank you, Ms. Anderson.
    Ms. Maisch.

         STATEMENT OF PATRICIA MAISCH, TUCSON, ARIZONA

    Ms. Maisch. Good afternoon, Chairman Schumer and 
distinguished Members of this Committee. Thank you for inviting 
me to testify.
    It is an honor, and humbling, for me to speak about a very 
personal issue: fixing our country's firearms background check 
system and keeping illegal guns away from dangerous persons.
    On January 8th--a beautiful, crystal-clear Saturday morning 
in Tucson--my life and the lives of so many other people 
changed forever. Words cannot describe the horrific acts I 
witnessed that morning or the sorrow we have all suffered. Luck 
was with me that day. I survived, physically uninjured.
    Six other innocents were not so fortunate. Their lives 
ended violently in a matter of 30 seconds. I want you to know 
who they are:
    Dorothy Morris, wife of George Morris. He was shot and 
survived that day; high school sweethearts married more than 
half a century; mother of two daughters.
    Dorwin Stoddard died shielding his wife, Mavy. Mavy and 
Dorwin, grade school sweethearts, found each other again after 
both their spouses had passed away. Mavy tells me that the last 
15 years have been a wonderful journey and that she misses 
Dorwin every waking minute. Mavy, who was wounded that day, is 
here today with one of her daughters.
    Phyllis Schneck, a widow with three adult children, 
grandchildren, and one great-grandchild; a Tucson snowbird from 
New Jersey; an avid crafter; cherished winter member of the 
North Minster Presbyterian Church.
    Some of you might recognize Judge John Roll, father, 
husband, grandfather; attended mass daily; served the great 
State of Arizona for over 30 years; friend of Congresswoman 
Giffords.
    Gabe Zimmerman. Gabby Giffords' staffer loved Tucson, 
hiking, and social concerns; fiance to Kelly O'Brien; son of 
Emily Nottingham and Ross Zimmerman; brother to Ben; friend to 
everyone he met, I am told. I am so sorry I did not have the 
opportunity to be his friend.
    Christina-Taylor Green. Beautiful little Christina-Taylor 
Green, only 9 years old; born on the day of our national 
tragedy--9/11/2001; newly elected to the Mesa Verde Elementary 
School student council; potential for future political service 
gone; loved butterflies; was a budding artist; loved playing 
baseball with the boys in Little League; doting sister of 
Dallas; cherished daughter of Roxanna and John.
    Thirteen more were physically injured that morning and 
untold numbers emotionally hurt. Colonel Bill Badger, Ken 
Dorushka, Randy Gardner, and Mavy Stoddard were among those 
physically wounded, and they are here with us today.
    Faith and Roger Salzgerber are also here. They stopped by 
that morning to talk to Gabby. Roger volunteered many hours to 
help re-elect Gabby. It is incredible that they escaped 
physical injury that day. Faith covered Christina-Taylor to 
keep her warm and comfort her while waiting for medical 
assistance to arrive.
    That morning, Roger had the courage to chase in behind the 
shooter, along with Bill Badger, who suffered a bullet graze 
wound to the head. Together they took the shooter down. Their 
courage and heroism gave me the opportunity to take an 
ammunition magazine from the shooter.
    Nurse Nancy Bowman is here today, too. She and her husband, 
Dr. David Bowman, were buying Brussels sprouts at the Safeway 
that morning. They provided triage service and immediate life-
saving care to the wounded. I shudder at the thought of what 
might have happened had they not been there that day.
    Tucson, unfortunately, is not the only tragedy represented 
here today. Joining us are more than 50 other survivors from 
across our great land whose lives are forever altered by gun 
violence. Mass murders with guns garner the most headlines, but 
each gun murder holds its own horrific details. Different 
places, different names, different circumstances; each somewhat 
different, but each all too similar. All tragic, all so very 
unnecessary.
    Chairman Schumer, I am definitely here to remember those 
that were killed that day as well as to honor each survivor. 
But my primary mission today is to remind all of you that 
Tucson is yet another extremely tragic example of what is at 
stake each and every time a gun falls--or is placed--into the 
wrong hands.
    Changing the past is impossible, no matter how desperately 
we want to change it, but it would be a pitiful shame if no 
action were taken to change the future.
    You can take action to improve our broken gun background 
check system, and I truly believe with all my heart that your 
actions can save lives.
    If I can try to make this as personal to you as it is to 
me, I feel that we can make progress. So forgive me if you find 
this offensive, but I want you to take a moment to do 
something. Imagine the headlines you have seen. Now replace the 
names of Dorothy Morris, Dorwin Stoddard, Phyllis Schneck, 
Judge John Roll, Gabe Zimmerman, and Christina-Taylor Green 
with one of your loved one's names.
    So that is why I am here today: to ask that you pass the 
Fix Gun Checks bill, which will save lives, maybe the life of 
someone you love.
    Your support for this legislation would help families and 
communities across our great country be more hopeful that they 
will be spared the pain, sorrow, and tragedy of Tucson.
    Since the day of the shooting, I have been sincerely 
touched by the outpouring of prayers and good wishes that 
Americans from across the county have shared with the victims' 
families as well as with fellow survivors, our community, and 
myself. These offerings continue to comfort and sustain me.
    That outpouring of support reminds me of our fundamental 
unity as a country. We all know that polarized debates that 
stifle policymaking prevent us from solving real-life problems. 
And when it comes to guns, the majority of Americans, the 
majority of Tucsonans, and the majority of gun owners want 
common-sense laws that protect Second Amendment rights and that 
protect us by helping stop the supply of illegal guns to 
dangerous people.
    This law will do that.
    Hopefully, the debate we have today will be different. I am 
here, we are all here, to ask you to recognize the common 
ground we share and to take two common-sense steps.
    First, make sure the records of all persons who should not 
be allowed to buy guns are in the background check system.
    Second, require every gun buyer to pass a background check, 
no matter where he or she buys the gun, or whom he or she buys 
it from. Background checks are simple, quick, and inexpensive.
    The American people support these proposals. According to a 
recent poll, 90 percent of all Americans and 90 percent of all 
gun owners support fixing gaps in the background system; 86 
percent of all Americans and 81 percent of gun owners support 
universal background checks.
    Please take these two steps by enacting the Fix Gun Checks 
bill. This bill could help prevent the murders of some 34 
Americans killed with guns each day. Thirty-four Americans 
killed every day. Five times the number of people murdered in 
Tucson. I cannot sit idly by while that happens each day, and I 
know that you will not either.
    The shooting in Tucson brought Americans together. Please 
honor that unity by putting politics aside and working together 
to fix our broken background check system.
    Please take action. Please prevent the next mass shooting. 
Please pass the Fix Gun Checks Act.
    I want to thank you again, all Members of the Committee, 
for giving me the opportunity to appear before you today, and I 
have just one last question for you:
    How much more pain, how much more sorrow, how many more 
deaths by guns must we endure before we do something?
    Thank you.
    [The prepared statement of Patricia Maisch appears as a 
submission for the record.]
    Senator Schumer. Well, thank you, Ms. Maisch, for your 
riveting and powerful testimony.
    Ms. Maisch. Thank you.
    Senator Schumer. It takes a lot of courage for you to be 
here. I had earlier, before my colleagues came in, asked the 
people who are here who were injured by gun violence or have 
family members who were killed or injured by gun violence to 
stand, but I am just going to ask--you mentioned a whole bunch 
of people who came here from Tucson with you, and I would just 
ask them to stand so we could recognize them separately.
    [Applause.]
    Senator Schumer. Thank you.
    Professor Kopel. You have a tough act to follow.

        STATEMENT OF DAVID B. KOPEL, ADJUNCT PROFESSOR,
 ADVANCED CONSTITUTIONAL LAW, DENVER UNIVERSITY, STRUM COLLEGE 
                    OF LAW, DENVER, COLORADO

    Professor Kopel. Thank you, Senator Schumer and Members of 
the Subcommittee. The Subcommittee has heard about concepts 
which are said to be in S. 436. I would like to address the 
actual contents of the bill.
    According to the Fifth Amendment, no one may be deprived of 
life, liberty, or property without due process of law, but S. 
436 violates the constitutional standards of due process and 
fair trial.
    S. 436 prohibits gun ownership based on an arrest rather 
than a conviction. For example, suppose a person was arrested 
for marijuana possession and was later found innocent because 
the police officer mistook tobacco for marijuana. S. 436 would 
make it a Federal felony for the innocent person to possess a 
firearm.
    At the press conference level, S. 436 is said to be about 
background checks on gun sales, but the bill is far more 
extreme than that. Under S. 436, it would be a Federal felony 
to temporarily allow someone to use or hold one's firearm in 
the following circumstances: while a friend visits your home; 
while taking a friend target shooting on your property or 
public lands where target shooting is allowed; while 
instructing students in a firearms safety class.
    Current law bans gun possession if there has been a formal 
determination that a person's mental illness makes him a danger 
to himself or others. S. 436 eliminates the requirement for a 
fair determination and eliminates the requirement for a finding 
of dangerousness. Instead, S. 436 bans gun possession by anyone 
who has ever been ordered to receive counseling for any mental 
problem. This would include: a college student who is ordered 
to get counseling because the school administration was 
retaliating against him for criticizing the administration; a 
person who was once ordered to receive counseling for 
homosexuality, cross-dressing, or being transgender; a woman 
who was raped and now has post-traumatic stress.
    S. 436 explicitly strips people of their Second Amendment 
rights based on a mere order from a college administrator 
rather than based on an actual determination by a court or a 
commission that an individual actually is dangerous.
    Ever since 1776, Congress has recognized that a national 
gun registry would be a dangerous violation of the right to 
keep and bear arms. S. 436 creates national gun registration. 
Several years ago, national gun registration was enacted in 
Canada. Canada's parliament is expected to repeal the national 
gun registration soon. As Canadians have realized, national gun 
registration is a waste of taxpayer dollars and contributes 
nothing to public safety.
    Congress does not have the constitutional authority to 
enact S. 436. The bill is apparently based on Congress' 
constitutional power to regulate commerce among the several 
States--the Interstate Commerce Clause; yet S. 436 applies to 
gun transfers that are purely intrastate, not interstate. It 
applies to activities that have nothing to do with commerce 
such as simply letting a friend examine your firearms 
collection. Thus, S. 436 violates the Tenth Amendment's 
reservation of State authority over purely intrastate 
activities. S. 436 further violates the Tenth Amendment by 
imposing on the vast majority of States an extremely repressive 
system of restrictions on law-abiding gun owners which those 
States have already rejected.
    Whatever good intentions might lie behind S. 436, the 
actual bill as written is unconstitutionally overbroad. It is a 
Pandora's box filled with the dangerous consequences that are 
the inevitable result of making it a felony for law-abiding 
Americans to possess and use firearms.
    Thank you.
    [The prepared statement of Prof. David B. Kopel appears as 
a submission for the record.]
    Senator Schumer. Thank you, Professor Kopel.
    Now we will go on to the questions. We are going to try to 
limit ourselves to the same amount we limited you, 5 minutes.
    My first series of questions are for Assistant Director 
Cuthbertson, and as you know, Director, the NICS Improvement 
Act requires the Department of Justice to ``assess the total 
percentage of records provided by each State in order to 
determine whether a given State is eligible for certain grants 
or, as of January 2011, eligible to have 3 percent of its DOJ 
money taken away.'' Isn't that right?
    Mr. Cuthbertson. I believe that is accurate, sir.
    Senator Schumer. Now, it is my understanding DOJ has 
decided not to penalize any States this year for providing 
fewer than 50 percent of their relevant records to NICS, and I 
am not sure I agree with this decision. I intend to push to 
make sure the penalties available under NICS are not viewed as 
empty threats. But the bottom line is we need to know which 
States are reporting and which States are not.
    To your knowledge, were estimates actually made as to the 
percentage of records that each State made available for 
background checks? If no estimates were made, do you know why 
that was?
    Mr. Cuthbertson. Sir, although the responsibility for the 
State estimates and the evaluation of the grants is the 
responsibility of the Department, I am aware from BJS that most 
States submitted estimates on some categories. However, that 
was not consistent throughout, and it is suspected that the 
estimates varied in reliability from State to State.
    Senator Schumer. So that is why they did not do it.
    Mr. Cuthbertson. I am not aware of why they did or did not.
    Senator Schumer. Okay. Well, I know you do not represent 
the Bureau of Justice Statistics today, and I appreciate that. 
But I am concerned about how we are going to get from here, 
where we have no estimates and they seem difficult to come by, 
to where we need to be, specific estimates to enable the 
Department to make an informed determination about which States 
are in compliance and which are not.
    I am troubled, to say the least, that the Department has 
not been able to do this yet, so today I am sending a letter to 
DOJ's Office of Justice Programs asking them to come up with a 
solution to the problem.
    In the meantime, since you are here today, I want to ask 
you this: By the time that DOJ issues its report to the 
Judiciary Committee next year, I would like for DOJ to be able 
to come up with estimates, even if they have to be explained 
and qualified, of compliance by State. This does not seem to be 
unreasonable to me 4 years after the passage of NIAA. Can you 
commit to doing that or take this message back to DOJ? I do not 
want a bureaucratic answer. I think this is part of the 
problem. Can you and your colleagues at DOJ please get this 
done?
    Mr. Cuthbertson. Sir, I will certainly take that back to 
the Department. The FBI has committed to work with all of our 
State, local, and Federal agencies to increase the completeness 
and accuracy of the records, provide them with whatever 
assistance we can, understanding it is a daunting problem to 
collect the estimates of records held in county courthouses 
throughout the country.
    Senator Schumer. Okay. Now, next, have you been able to 
make rough estimates for any of the categories of prohibited 
users? Are there any in which States appear to be, by and 
large, above 50 percent?
    Mr. Cuthbertson. Sir, the FBI has not made estimates since 
that is under the purview of BJS. What we do look at are the 
completeness of the criminal history records in the III in 
which, in general, the number of dispositions for the arrests 
are about 50 percent. We work very hard in trying to increase 
the completeness of those so that arrests will contain the 
corresponding court outcome, whether that is a conviction or 
otherwise.
    Senator Schumer. Okay, and that is on the felonies. So you 
have an easier time with that, I presume.
    Mr. Cuthbertson. Felonies or misdemeanors, sir.
    Senator Schumer. Okay. Now, I understand you have made some 
progress in getting Federal agencies to improve their reporting 
to the NICS database. The negative side is that 52 out of 61 
Federal agencies have reported zero mental health records. What 
concrete steps have you taken to assess the number of records 
out there and increase reporting?
    Mr. Cuthbertson. Sir, we have had a tremendous amount of 
correspondence with the Federal agencies, both at the FBI and 
the Department level, to work with them to try to have them 
discover what records would be responsive. I think when you 
look at the list of Federal agencies, there are a good number, 
however, who would not have responsive records to some of the 
categories, including mental health records.
    Senator Schumer. Now, shortly after the Tucson shooting, 
several media outlets reported DOJ has an effective policy of 
not requiring Federal agencies to report the results of 
voluntary drug tests to the NICS database. I would like to know 
whether you and the Department are working on this policy to 
make sure all relevant records from Federal agencies are, in 
fact, getting into the NICS. Jared Loughner, as you know, 
failed a drug test when he applied to enlist in the army. So it 
is clearly relevant, particularly to Ms. Maisch's testimony.
    Mr. Cuthbertson. Sir, as I understand it, the Reno memo, 
which you are referencing, is still in force. The Department is 
aware of your concerns regarding that existing policy, and any 
further discussions regarding policy of the Department would 
have to be referred to them.
    Senator Schumer. Is there a chance we can get this Reno 
memo undone?
    Mr. Cuthbertson. I would have to defer that question to the 
Department, sir.
    Senator Schumer. Okay. We will ask the Department in 
writing and add it to the record, without objection.
    [The information appears as a submission for the record.]
    Senator Schumer. My time has expired. I may be able to come 
back to a second round, but I am not going to call on Senator 
Grassley.
    Senator Grassley. For my investigation of Fast and Furious, 
Mr. Cuthbertson, I have written a letter to the FBI, including 
you in your previous position as head of the El Paso Field 
Office, for some documents. Have you done anything to search 
documents in response to our request?
    Mr. Cuthbertson. I have not done so personally, sir. That 
is being done by FBI headquarters in conjunction with the 
Department.
    Senator Grassley. We have not gotten any documents. When 
did you first hear about ATF walking guns? And when did you 
hear it?
    Mr. Cuthbertson. Sir, the only knowledge I have, personal 
knowledge, regarding ATF's investigation commonly known as Fast 
and Furious are from media accounts that we all read.
    Senator Grassley. Okay. Did you ever receive any emails 
related to Operation Fast and Furious?
    Mr. Cuthbertson. Sir, I would respectfully ask that any 
particular questions regarding Fast and Furious be directed to 
the Department, who is coordinating all responses.
    Senator Grassley. At least you can--I am going to ask the 
questions, anyway. Do you have any knowledge of any emails 
involving FBI employees that are related to ATF's Operation 
Fast and Furious?
    Mr. Cuthbertson. No, sir, I do not have any direct 
knowledge, and any knowledge I would have would not be 
comprehensive, so I would defer the question to the Department 
of Justice.
    Senator Grassley. Are you aware of any other investigations 
involving gun walking by any Federal agency in Texas?
    Mr. Cuthbertson. No, I am unaware of any of those.
    Senator Grassley. I am sure you can answer this question: 
Regarding the legislation we are addressing today, has the 
President and the administration taken a formal position in 
support of it?
    Mr. Cuthbertson. Sir, I am going to respectfully ask you to 
repeat the question. I did not hear it.
    Senator Grassley. Regarding this legislation that we're 
addressing today, has the President and the administration 
taken a formal position in support of it?
    Mr. Cuthbertson. Sir, I am unaware of any position taken by 
the President and administration, and I am not in a position to 
comment on any position of the FBI or the Department.
    Senator Grassley. Okay. Mr. Kopel, the Improvement Act was 
signed into law in 2008 as a result of the tragedy at Virginia 
Tech. As I indicated in my statement, that has affected some 
veterans. The legislation we are discussing here today makes 
similar changes to Federal gun laws that could have serious 
side effects.
    In your testimony you discussed how the bill's definition 
of ``adjudicated as mentally defective'' is problematic. 
Notably, the bill states that if a court, board, commission, or 
other lawful authority determines that the mental health of an 
individual is an issue and compels or mandates ``counseling, 
medication, or testing to determine compliance with prescribed 
medication,'' a person will be prohibited from owning a weapon.
    Question: Many police forces across the country, including 
the New York Police Department, require mandatory mental health 
counseling for officers that discharge their weapons in the 
line of duty. Under this provision could these officers now be 
barred from owning, purchasing, or possessing firearms?
    Professor Kopel. That would seem to be the result. An 
important change that this bill would make is that it makes it 
clear that the language about other lawful authority is not 
just a board or a commission or some kind of mental health 
expert. It includes explicitly university administrations, and 
I think by implications it would likewise include the lawful 
authority of a police commander ordering a police officer to 
get mental health counseling. And, again, it makes the 
disarmament provision triggered not by any finding that a 
person has a mental problem. It is simply the order to get 
counseling that triggers the gun ban.
    Senator Grassley. What about a family member of a 9/11 
victim that is grieving from the loss of a loved one? If they 
were ordered to receive mental health counseling to deal with 
their loss, would they be barred from exercising their Second 
Amendment right under the bill?
    Professor Kopel. Yes, because it takes away--the bill takes 
away the current language that says people lose their gun 
rights on mental health issues only if they are either 
incompetent to take care of themselves or they have been found 
to be dangerous to themselves or others. That would be 
eliminated, and instead the bill would impose the gun 
prohibition on anyone who has been ordered into counseling for 
any mental illness.
    Senator Grassley. This will have to be my last question for 
this round. A 2008 article in the New York Times entitled, 
``Worried about stigma, officers often opt out of police 
counseling,'' and then to quote from the article, it states, 
``Counseling remains among the most underused tools in the 
police officer's arsenal, the result of an age-old stigma 
within the department against psychiatry in general.''
    Isn't it a real possibility that this bill will become a 
new deterrent for those who need mental health counseling 
because they are afraid to seek it for fear of losing their 
Second Amendment rights? As this article points out, there is 
already a stigma for law enforcement seeking mental health 
counseling. Won't this make that problem much worse?
    Professor Kopel. I think the problem of the stigma of 
people being reluctant to go to counseling is not just confined 
to police officers. It is something mental health professionals 
face all the time. And even the very discussion of this bill, 
frankly, makes the problem worse because the bill is 
retroactive, so somebody who got counseling in 2006 or, for 
that matter, in 1993, the day this bill became law it would be 
illegal for that person to possess a gun. So if they have three 
guns and the bill becomes law on December 1st, on December 2nd 
they are a Federal felon. And when you talk about this kind of 
retroactive felonization of people for getting mental health 
counseling, I would think it would only worsen the reluctance 
of many people to go to counseling.
    Senator Grassley. Thank you.
    Senator Schumer. Thank you, Senator Grassley.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    Mr. Cuthbertson, with regard to the reporting for the 
purposes of the National Crime Information Center, every State 
and local government is required, I believe is the right word, 
to submit all convictions that occur in their courts, and they 
are requested to submit records for arrest to the NCIC. Is that 
correct?
    Mr. Cuthbertson. Sir, all information provided to the FBI 
through the States is voluntary. The III, or Interstate 
Identification Index, is the criminal history repository in 
which arrests and convictions are reported via fingerprints to 
the FBI.
    Senator Sessions. Is there any discipline to a State that 
accesses the NCIC for their benefit, or a local jurisdiction, 
but will not bother to put their information in concerning 
convictions, some of which may be very serious convictions?
    Mr. Cuthbertson. There is no process in which we fine 
people or have any negative effects because all the information 
provided to the FBI is voluntary. We have an audit procedure to 
make sure that information is used, stored correctly, and 
accessed correctly, but it is a voluntary system.
    Senator Sessions. Okay. So now we have this new requirement 
that mental health counseling be reported, and if you do not do 
that, you lose money?
    Mr. Cuthbertson. I would have to defer that to the 
Department since they are the ones that judge the grant 
applications.
    Senator Sessions. Well, I would just say, for people who 
are concerned about public safety, the greatest likelihood of 
apprehending serious criminals, people who actually commit 
crimes and murders, based on my 15-plus years of prosecuting--
and I prosecuted these Federal gun cases by the hundreds. I 
personally tried lots of them. As a matter of fact, I see in 
the report my district is one of the highest in the Nation in 
prosecutions still, my old district. But we made it a high 
priority.
    Senator Schumer. You set a very good example, Senator.
    Senator Sessions. Well, I think they are following the 
example we set because we were at the top of the country. I 
just would say to you, what I am trying to get at is, would you 
not as an experienced person in this, dealing with these 
issues, say that a failure to enter felony convictions would be 
far more numerous than maybe a counseling question would be?
    Mr. Cuthbertson. Sir, as we have seen, although submission 
to the III is voluntary, it is widely used by law enforcement 
agencies----
    Senator Sessions. III is?
    Mr. Cuthbertson. The criminal history repository, 
Interstate Identification Index. Although it is widely used and 
it is the Nation's criminal history repository, we have 
traditionally seen the dispositions of arrests run at about 50 
percent or a little bit more. And there are a variety of 
reasons for that, because the records have to come from the 
courts, and that seems to have been the weak point in getting 
those records from the courts into the Federal system so that 
those dispositions can be attached to the arrests that caused 
either those convictions or acquittals.
    Senator Sessions. Mr. Chairman, one of the greatest 
advancements in criminal justice is the ability to arrest 
someone in New York who was convicted of a felony in Alabama 
and the arresting officer know it immediately because it is in 
the NCIC, and they know they have got a dangerous criminal. It 
affects who is released on bail. So when you get half the 
jurisdictions not submitting routine felony convictions--is 
that what you were saying?
    Mr. Cuthbertson. No, sir. It is not half the jurisdictions. 
It is about half the arrest cycles in NCIC.
    Senator Sessions. Arrest cycles.
    Mr. Cuthbertson. Right.
    Senator Sessions. You mean arrests or convictions?
    Mr. Cuthbertson. No, sir. One arrest can be for different 
criminal charges. So let us say you had a breaking and entering 
and an assault and a murder. Normally, that would be reported 
in three arrest cycles. As a prosecutor, you understand you may 
have a conviction on one of those charges. So one arrest cycle 
does not equal one arrest. Some arrests have more than one 
arrest cycle, and it is, in general, 50 percent of the arrest 
cycles in the III have a corresponding disposition associated 
with them. The NCIC is the part that is used for wants and 
warrants, active information that is very accurate and very up 
to date. But the criminal history information in and of itself 
is in the III. The NICS accesses both those databases in 
addition to the NICS Index.
    Senator Sessions. I have trouble with this every time. It 
is so complex. But basically I would just say that when a 
prosecutor is prosecuting under--the most commonly used 
statute, I believe, is possessing of a firearm after conviction 
of a felony, if you do not know the person is convicted of a 
felony, then you do not have a conviction, and it may not have 
occurred in your district. It is a huge issue.
    I would just wrap up, Mr. Chairman. My time is out. There 
are a lot of things I would ask, but----
    Senator Schumer. We are going to have a second round.
    Senator Sessions. I do have to excuse myself. If I could 
have one more question?
    Senator Schumer. Sure.
    Senator Sessions. It would deal with the overall trend of 
prosecutions. I have noticed in the last year of the Bush 
administration there were 8,480 prosecutions under the firearms 
statutes. That has dropped to 7,183 today, which is a rather 
substantial reduction in the number of prosecutions.
    I would note, Mr. Feinblatt, that New York, at least the 
Eastern District, Brooklyn, is one of the lowest in the 
country. Maybe you ought to talk to the U.S. Attorney and 
Alcohol, Tobacco, and Firearms, because I am not dismissing the 
importance of the legislation you have offered, Mr. Chairman. I 
look forward to studying it. I do think it has some breadth 
issues that certainly need to be dealt with. But I would just 
say to you the bread-and-butter issues, the ones that put 
people in jail, are carrying a firearm during the commission of 
a crime and possessing of a firearm after having been convicted 
of a felony. There are about 30 pages of firearms legislation 
here in small print. It is not as if we do not have firearm 
laws.
    So we have had a lot of fights over gun shows and how to 
regulate that, and this issue is an important issue. But I 
would just say to you we need to be sure that the 
administration is actually prosecuting the criminals that use 
guns. A lot of these regulations that are pushed often by 
people who do not prosecute the cases are very seldom used and 
very seldom applicable to normal, routine prosecutions.
    I thank the Chair.
    Senator Schumer. Well, thank you. Again, I offered this to 
Senator Grassley. Certainly the legislation we passed 
unanimously in 2007 can be improved, and if there are people 
who are wrongfully being deprived of their right to bear arms, 
I would certainly look at that as well as, just as you 
correctly point out, making the records as strong as possible. 
We are not intending to add new crimes here in the part of the 
bill dealing with NICS but, rather, trying to just make it 
work.
    Senator Sessions. One reason this code is complex on gun 
crimes is because there is a constitutional right to keep and 
bear arms. I believe the Constitution, if you respect it, you 
enforce it as written. I believe the Supreme Court is correct 
to say it is a personal right to keep and bear arms. And, 
therefore, when you constrict that right, you have to have a 
justification to constrict it. One of them is if you have been 
convicted of a felony. Another one is that you get an extra 
enhanced penalty if you are carrying a gun during the 
commission of a felony. If you lie on the form, if you are a 
dealer that does not have a license and sells contrary to the 
law and does not comply with the waiting period, all those 
things, hundreds of requirements on constricting the free flow 
of firearms in America, but there is a fundamental 
constitutional right to keep and bear arms, and so we get down 
to these little areas where we have disputes.
    Senator Schumer. The Senator came in after I spoke, but not 
much different from what I said. There is a right to bear arms, 
but there is also a balancing test, and I think we would agree 
on that, and maybe we can work together. That is very 
encouraging.
    Okay. I have a few quick questions that I had not been able 
to ask. One last one to Director Cuthbertson. Mayor Bloomberg 
testified that, according to his coalition, many States say 
they need more specific guidance in several of the prohibited 
categories, for example, in determining the scope of mental 
health and drug abuse records that qualify for inclusion to 
NICS. Now, I have looked at the frequently asked questions that 
are posted online. It is not covered by such as this. Would you 
consider developing more specific written guidance on the kind 
of records that do and do not qualify for inclusion by 
category?
    Mr. Cuthbertson. We have worked extensively with the 
States, provided a tremendous amount of guidance. But if there 
are areas that we have not covered, we certainly would be 
willing to provide that guidance to the States.
    Senator Schumer. Okay. Next I have a question for Mr. 
Feinblatt. I was going to ask this of Mayor Bloomberg, but 
perhaps you can speak for him. As you know, I have worked 
closely with the mayor and your office on crime issues. I tend 
to be a tough-on-crime guy, and I think one of the great things 
that has happened to New York is crime rates are way, way down, 
and that has allowed our city to grow by 1.5 million people. 
Most people do not know that New York has grown by close 1.5 
million people, and one of the main reasons is our much lower 
crime rates. I am proud to say that we are the lowest of the 25 
largest metropolitan areas in violent crime and crime, and that 
is due to the good work of our police force and some of the 
Federal laws we passed over 15 years ago.
    But we are concerned, I am concerned about the resurgence 
of the efforts to make concealed-carry permits legal across 
State lines, making someone who obtained a permit to carry a 
concealed weapon in one State able to carry it in another like 
New York where we regulate concealed weapons.
    Are the mayor and his coalition and you, Mr. Feinblatt, 
concerned about this renewed effort which the Senate defeated 
in 2009, but I believe the House will be voting for tomorrow? 
And, you know, it was very neck and neck in the Senate as to 
whether it passes or fails.
    Mr. Feinblatt. Yes, the Mayors Against Illegal Guns, made 
up of over 600 mayors as well as law enforcement organizations 
across the country, domestic violence advocates across the 
country, are all keenly concerned about national concealed-
carry reciprocity. We believe that States ought to have the 
ability to regulate who gets a concealed-carry permit in their 
State and that there should be respect for States' rights.
    New York has a set of regulations that are very different 
from Florida. We are not saying that New York's regulations 
should be what Florida's regulations are, but it is very 
important that each State gets to determine how to keep their 
citizens safe, and Mayors Against Illegal Guns is working very 
hard with you and others to hopefully defeat that legislation 
when it comes to the Senate.
    Senator Schumer. Now, for Ms. Anderson, you mentioned in 
your testimony that you have not been able to obtain funding to 
improve your record reporting under the grants we created in 
2007 because your law providing for restoration of gun rights 
did not meet ATF's criteria. Did you ultimately get the help 
you needed from ATF so you could draft an appropriate 
restoration of gun rights programs?
    Ms. Anderson. It was not very clear to us in the beginning 
as we worked with our stakeholder agencies that we could lean 
on them for assistance for the legislation and to ensure the 
language that was necessary. They were helpful when we 
approached them and asked questions because it was not clear to 
us. However, this last round it did not pass, and so we have 
areas that are too permissive and areas that are less 
permissive that we need to work on.
    Senator Schumer. And given the lack of grant money, what 
did enable your State Department of Social and Health Services 
to finally transfer 30,000 mental adjudication records to the 
database? What were your most effective strategies, both 
logistical and political?
    Ms. Anderson. They were very helpful and very willing to 
work with us on those areas. It was tough because they are not 
a criminal justice agency. They understood our need to provide 
the information. However, they come from a different 
perspective than we do, and they do not have a connection to 
NICS. And so we worked with them, lots and lots of stakeholder 
work. It took over a year. But they were willing to provide 
information.
    One of the bigger problems is that the information that we 
provided is not necessarily a set standard. They provided what 
they had. And so not all of that information that they had 
necessarily would stop somebody from having a gun. So it was 
initially dumped into the denied persons file.
    Senator Schumer. We may have to look at a little more 
flexibility here because what the States have on file is not 
necessarily--we drafted our legislation one way, and the States 
have things on file in different ways, and I think that is 
something we will look at, and you bring that up.
    Okay. I want to thank all of you for being here. I want to 
thank--yes, we are going to--do not worry. This is the last 
thing I am going to say except, ``The hearing is adjourned.''
    [Laughter.]
    Senator Schumer. I want to thank Ms. Maisch for her 
powerful testimony, and I thank Professor Kopel for coming as 
well. With that, our last questioner will be Senator Grassley.
    Senator Grassley. I think mine will only take 5 minutes or 
less. Professor, I am going to start with you along the same 
scenario I was spelling out with you in my last two or three 
questions. In each of these scenarios, law-abiding citizens who 
were subject to life-changing circumstances not of their own 
fault could lose their Second Amendment rights. Under this bill 
what recourse would they have to reestablish their Second 
Amendment rights?
    Professor Kopel. Well, in some senses, none. If you take 
the example of the person who was incorrectly arrested for a 
drug offense, the law says that there is a ban for 5 years on 
the person simply because of the fact of the arrest. You cannot 
go into court and prove that you were never arrested. It was a 
fact that you were arrested, even if you can also show that you 
were later found to be innocent.
    One of the real loopholes, I guess, in how the Federal gun 
laws currently exist is that when the Gun Control Act of 1968 
was passed into law, Congress did prohibit many categories of 
people from having firearms, and it also put in a safety valve, 
which is called the restoration of rights. So, for example, 
someone who was convicted of cheating on his taxes in 1964, 
then in 1968 he became retroactively barred from owning a gun 
for the rest of his life, under the restoration-of-rights 
procedure he could do a discretionary petition to have his 
rights restored say in 2000 that he has gone straight since 
then, has lived an exemplary life, he just wants to have a gun 
for hunting, he is not a threat to anyone. And the Bureau of 
Alcohol, Tobacco, and Firearms could in its discretion restore 
his gun rights.
    But since the 1990s, Congress has put in appropriations 
riders which have forbidden any restoration of rights. So these 
people who may well have been, say, properly barred at one time 
in their life from having a gun have no way of ever getting 
their rights back, and that would apply to a lot of these 
people as well.
    The NICS Improvement Act, which Senator Schumer talked 
about, did provide funding for States to restorations of rights 
only on the mental health issues, but that thing would have to 
be entirely rewritten because now we are not talking under the 
existing law. You are talking about a determination that 
someone is a threat to himself or others. But now the ban 
happens simply because the person was ordered into counseling. 
Well, you can say, gee, this person at one time was a threat to 
himself or others, but now it is 10 years later and he is 
mentally healthy. That is a changed circumstance. But the 
circumstance that a person was ordered into counseling is like 
the circumstance of an arrest. It is an unchangeable fact that 
it happened. So I am not sure what could ever happen for those 
people to have their rights restored.
    Senator Schumer. With Senator Grassley's permission, I 
would just like to make a clarification. It will not come from 
your time.
    Senator Grassley. Yes, go ahead.
    Senator Schumer. Under the provisions of the law, they have 
to be--and we worked this out with Senator Coburn. They have to 
be adjudicated mentally ill. Only after that can they be 
ordered for counseling. It is not just willy-nilly. It is an 
adjudication, like everything else. And if we want to try and 
change it so that the person's status is changed, there are 
laws on the State books that say you can go back and say, ``I 
am no longer mentally ill.'' Now, maybe you think those are too 
tough and we could look at those, but isn't it true that the 
only way that you can be put on this database is an 
adjudication that you are mentally ill, you are not just 
ordered to counseling? That is secondary after the first step. 
Isn't that correct?
    Professor Kopel. Senator, you are correctly describing the 
law as it exists now, presuming that having--if you describe an 
adjudication as being something broad enough to include what a 
veteran--somebody the Veterans Department says. But your bill 
would change that. Your bill would change it so that the order 
into counseling is itself the trigger for the gun prohibition.
    Senator Schumer. Yes, but there has to be--they cannot just 
willy-nilly order someone into counseling.
    Professor Kopel. Well, under your bill it--your bill under 
Section 124 orders colleges to set up a system to order people 
into counseling, and then what gets reported to NICS is the 
fact that they were ordered into counseling, not what any 
result of the counseling was. So your bill would--you have 
correctly described the existing law, but your bill would 
change that so that the counseling order becomes the trigger.
    Senator Schumer. They still have to be adjudicated mentally 
ill.
    Professor Kopel. No, not under Section 124 of your bill.
    Section 124 of your bill says that the--you put an order--
--
    Senator Schumer. I will read it.
    Professor Kopel. Sure. It is on page 8. The order into 
counseling is itself what is supposed to be reported to NICS.
    Senator Schumer. Let me just read it, okay? Yes, it is not 
just by a court, you are right, but there has to be--``The term 
`adjudicated as mentally defective' includes an order by a 
court''--it is an order--``board, commission, or other lawful 
authority that a person in response to marks of normal 
intelligence, mental illness, or incompetency be compelled to 
receive services.'' Now, as best I know, no State lightly does 
that. In fact, we have been through it in New York. I have had 
constituents who want very much their adult children to be 
ordered into some kind of counseling and other kinds of 
treatment of mental illness, and it is extremely difficult to 
get done. They are frustrated. They can do it for their minor 
children, but they cannot do it for their adult children. I 
have been through this.
    Now, I do not know how easy it is in other States, and we 
will certainly look at that. But this is not just a whimsical 
decision. That is all I am saying.
    Professor Kopel. Senator, it is on pages 8 through 10 of 
the bill where you require that all federally funded 
universities have to set up this team which will order people 
to go to involuntary counseling. That is what the bill says.
    Senator Schumer. That is a different part of the bill.
    Professor Kopel. Yes, and once they are ordered to go into 
involuntary counseling--and, of course, it is not really 
involuntary in the sense that you cannot drag them in. They 
could just drop out of school instead. But what your bill says, 
when the school orders somebody into involuntary counseling, 
that itself is what is supposed to be reported to NICS.
    Senator Schumer. I understand that, but my point is that 
you cannot be ordered into involuntary counseling very easily. 
There is a whole procedure that has to be done certainly under 
New York State law and I believe under most State law.
    Professor Kopel. Well, not under your bill. Your bill says 
you----
    Senator Schumer. My bill refers to the State's decision.
    Professor Kopel. No. Your bill refers to the university's 
decision. That is what Section 124 of the bill does.
    Senator Schumer. Which is sanctioned by State law.
    Mr. Kopel. Senator, that is just not in the bill. Your bill 
makes the----
    Senator Schumer. The part you are referring to relates to 
mental health programs. The part about ordering it into NICS is 
the part I read back here on page 7. Anyway----
    Mr. Kopel. Senator, very quickly. Page----
    Senator Schumer. Go ahead. We will let you get the last----
    Mr. Kopel. Page 9, go down to line 17, subsection 5, 
``Every federally funded university, a procedure for making 
involuntary referrals for such students to State or local 
mental health authorities for mental evaluation, which shall 
include reporting such referrals to a State agency responsible 
for identifying persons described in Section 922(g)(4) of Title 
18 U.S. Code,'' which is the section that imposes the gun 
prohibition for mental conditions.
    Senator Schumer. But you still need the State agency to 
approve it.
    Mr. Kopel. No, it--there is nothing--well, not in the bill 
as drafted. Perhaps you might want to revise it.
    Senator Schumer. Section 5 deals with--well, okay. We will 
get--I do not want to--we will go back to Senator Grassley, and 
we will have a series of questions.
    Senator Grassley. He answered all of my questions, and one 
question I answered--or that I asked, so I will end by just 
suggesting to us--and I will put this in the record. I want a 
statement that Burr and Webb put in about their bill to helping 
veterans get back their Second Amendment protection rights in 
the--I would like to have that put in the record, and then 
maybe that will focus people's attention on something we can do 
right now to correct a sweeping judgment that was made 2 years 
ago that probably none of us thought about.
    [The information appears as a submission for the record.]
    Senator Grassley. Thank you all very much.
    Senator Schumer. I am just going to give you one minute 
here because I want to clarify this. The part you are referring 
to says when a university makes such a determination, they have 
to refer it to the State. It does not relate to whether they 
are on the NICS database. That is what I am saying. If then the 
State by its own actions after the referral says that there can 
be involuntary--you know, orders involuntary counseling or 
whatever, then it would be referred. That is the point. This is 
just--page 9 is simply the university refers it to the State so 
the State is aware.
    Mr. Kopel. I understand your purpose, Senator, but you 
might want to have the language revised if that is what you 
want to accomplish, because----
    Senator Schumer. I am happy to look at it.
    Mr. Kopel. Thank you.
    Senator Schumer. All right. As I said--I did not quite keep 
my promise that the only thing else I would say would be, 
``Hearing adjourned,'' but, again, I want to thank so many who 
came here. We understand your anguish. And, actually, we got 
good answers to the questions from everybody, and the fact that 
both Senator Grassley and Senator Sessions, and particularly in 
Senator Sessions' comments, shows we might be able to reach 
some common ground here in terms of at least moving parts of 
our legislation. So I want to thank you for being here and 
thank all the witnesses for their excellent testimony, and now 
I will say the hearing is adjourned.
    [Applause.]
    [Whereupon, at 4:10 p.m., the Subcommittee was adjourned.]
    [Additional material submitted for the record follows.]

                            A P P E N D I X

              Additional Material Submitted for the Record

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               Prepared Statement of Heather A. Anderson


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            Prepared Statement of Hon. Michael R. Bloomberg

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                Prepared Statement of David Cuthbertson


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                  Prepared Statement of John Feinblatt


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               Prepared Statement of Prof. David B. Kopel


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                 Prepared Statement of Patricia Maisch

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               Prepared Statement of Senator Dick Durbin

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      Questions Submitted to David Cuthbertson by Senator Grassley

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      Questions Submitted to Prof. David B. Kopel by Senator Hatch
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     Questions Submitted to David Cuthbertson by Senator Klobuchar

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         Responses of David Cuthbertson to Questions Submitted
                   by Senators Grassley and Klobuchar


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          Responses Supplement--Redacted of David Cuthbertson
       to Questions Submitted by Senators Grassley and Klobuchar

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        Responses of Prof. David B. Kopel to Questions Submitted
                            by Senator Hatch

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                       Submission for the Record

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                       Submission for the Record


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