[Congressional Record Volume 148, Number 106 (Tuesday, July 30, 2002)]
[Senate]
[Pages S7583-S7585]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SCHUMER (for himself, Mr. Craig, Mr. Kennedy, and Mr. 
        McCain):
  S. 2826. A bill to improve the national instant criminal background 
check system; and for other purposes; to the Committee on the 
Judiciary.
  Mr. SCHUMER. Mr. President, we are an odd group of Senators, but not 
when it comes to making sure that guns are kept away from drug addicts, 
felons, illegal aliens and others.
  Today, we're announcing an extremely important new bill that would 
plug up the gaping holes that are currently in the Justice Department's 
gun background check system.
  This bill is needed to prevent brutal, senseless murders like the one 
that took place in a Long Island church a few months ago from ever 
happening again.

[[Page S7584]]

  For those of you who may not know what happened, on March 8, 2002, 
Peter J. Troy walked into Britt's Firearms in Mineolan, NY and 
purchased a .22 caliber semi-automatic rifle. Four days later, he 
walked into a church in Lynbrook, NY, Our Lady of Peace, and shot and 
killed the Reverend Lawrence M. Penzes and Eileen Tosner.
  Mr. Troy had a history of mental health problems, and had been 
admitted to Bellevue Hospital Center and Nassau University Medical 
Center on at least two occasions. In addition, Mr. Troy's mother had a 
restraining order issued against him in February 1998, which he 
violated on more than one occasion.
  Yet despite his history of mental illness and violent behavior, Mr. 
Troy was approved to purchase the rifle by a Federal background check. 
In fact, there was no records on Peter J. Troy in the National Instant 
Criminal Background Check System, NICS, at all.
  That never, ever should have happened. We knew Peter Troy was a 
violent man. We knew he was mentally ill. He had no business owning a 
gun, and he proved it, to the shock and horror of everyone in Long 
Island and to everyone else in this Nation.
  Had the Federal system that checks all gun purchasers picked up on 
the fact that Peter Troy was both mentally ill and was subject to a 
restraining order, he never would have been sold a rifle and the 
murders may never had occurred.
  All the signs were there and all the signs were ignored. That's why 
we need to tighten State reporting laws so that the violent and the 
mentally ill, people who aren't allowed to purchase guns, aren't able 
to purchase guns. Otherwise, this could happen again and again.
  The Federal Gun Control Act bars people who have been committed to a 
mental institution or convicted of a felony from purchasing a firearm. 
That's not the problem.
  The problem is that this kind of information is not always shared 
with the NICS system. The INS, for example, doesn't always share info 
about an illegal alien with the Justice Department or a State doesn't 
forward info about an involuntary commitment to the FBI.
  So when the background check is performed, the information never 
appears, red flags aren't raised, and the gun purchase goes right 
through.
  In other words, the Federal background check is only as good as the 
records that are in it.
  How poor is our background check system? This year, Americans for Gun 
Safety released a report showing that over a 30-month period, 10,000 
felons obtained a gun simply because faulty records made it impossible 
to complete a background check on time.
  And their report warned that this 10,000 figure is only the tip of 
the iceberg. It doesn't include the thousands of illegal immigrants, 
domestic abusers, and the severely mentally ill who are not in the 
system at all and cannot be stopped by a background check no matter how 
much time is allowed.
  It's catch as catch can, and we're not catching very much.
  Under the bill we're introducing, if someone is trying to buy a gun, 
and if they are either: 1. under indictment; 2. been convicted of a 
crime punishable by more than a year; 3. is a fugitive from justice; 4. 
is a known drug addict; 5. if they've been committed to a mental 
institution; 6. is subject to a court order restraining them from 
domestic violence; or 7. been convicted of a domestic violence 
misdemeanor, the State will be legally required to let the FBI know.
  It's a lot of information. There's no question about it. But most of 
this information is kept by the states. And most of it is automated. So 
for the majority of these categories, it's a matter of getting the 
information from point A, the State, to point B--the FBI. 
Unfortunately, most States, including New York, do not have good 
records on mental health, and that's going to take some more work.
  The bill provides $375 million per year for three years, for States 
to get their records in order and to automate them to ensure that they 
get to the FBI quickly.
  It also requires Federal agencies to share the records they keep with 
NICS. For example, the INS would be required to share its records on 
illegal aliens with NICS.
  I want to thank my colleagues who are with me today, particularly 
Senator Craig, for recognizing that this is a public safety issue that 
needs urgent attention and not a ``gun control'' issue per se. Working 
together, we can get this done in the Senate with the same speed the 
House got it done.
  Mr. CRAIG. Mr. President, I am pleased to join my colleagues in an 
unprecedented alliance today, introducing legislation to improve the 
National Instant Background Check System (NICS). While we have 
frequently demonstrated our differing views of second amendment issues, 
we stand together when it comes to enforcing laws against criminal gun 
violence, and that is the subject of our legislation.
  The vast majority of gun owners in our country today understand that 
the right to keep and bear arms comes with a grave duty to use firearms 
responsibly and within the law.
  The NICS system deals with the tiny but dangerous fraction of 
Americans who have lost their firearm rights because they are proven 
lawbreakers, convicted felons--or because they do not have the capacity 
to understand their responsibilities as firearm users. Our federal laws 
prohibit these individuals from possessing or acquiring firearms, and 
the NICS system is made up of the records of these ``prohibited 
persons.'' This is the list against which prospective gun purchasers 
are checked when the law requires a background check. State and local 
agencies still play a big role, conducting checks on almost half the 
applications based on their own records.
  We want the system to be fast, so that it does not unduly burden 
individuals in the exercise of their second amendment rights. That 
means the records need to be automated, so we don't have the kind of 
delays that happen when local law enforcement has to manually check 
written records.
  It is equally critical to all of us that the system be accurate. 
Accuracy means we need to be able to remove a record if it is no longer 
relevant--for example, if it's a record of an indictment on charges 
that were later dropped. It also means we need all relevant records--
records pertaining not only to convicted felons, but also those who are 
adjudicated mentally incompetent and drug abusers, and all other 
categories prohibited by federal law from possessing firearms.
  Accurate, automated records means truly instant checks, fewer delays 
for law-abiding gun purchases, and better use as a tool to prevent 
violent criminals from obtaining firearms.
  U.S. taxpayers have spend hundreds of millions of dollars in less 
than a decade, helping to improve all States' criminal history records 
for law enforcement purposes. It is time to focus our national strategy 
on getting the job completed, to the benefit of not just the gun-
purchasing public but all Americans concerned about the safety of their 
communities.
  Our bill sets out the objectives needed to complete the NICS system, 
and it provides incentives and strategies for accomplishing those 
objectives. We have been working in tandem with like-minded members in 
the other body, and the bill we introduce today reflects the changes 
made by the House Judiciary Committee in the original proposal. Among 
other things, this bill specifies the records still needed from federal 
agencies to fill in the gaps, and requires the removal of records that 
are no longer relevant. It provides inventive for States to improve 
their systems through grants and waivers of current matching fund 
requirements. It calls on DOJ and the mental health community to 
develop privacy protocols so that mental health records can be properly 
added to the system.
  I am also pleased that the bill incorporates a provision of great 
importance to law-abiding gun owners, making permanent the prohibition 
against charging a federal fee for background checks. Congress has 
supported this prohibition repeatedly, acknowledging that any such 
check is being done for law enforcement purposes and not as a service 
or convenience to gun purchasers. It makes good sense to codify that 
prohibition, once and for all.
  In sum, this is an important and timely measure. I appreciate the 
work that the cosponsors have done to get us to this point, and I urge 
all our colleagues to support the bill's enactment.

[[Page S7585]]

  Mr. McCAIN. Mr. President, along with Senators Schumer, Craig, and 
Kennedy, I rise today to introduce the ``Our Lady of Peace Act'' that 
has the strong support of major organizations across the political 
spectrum.
  This legislation fixes a huge hole in our system--a hole that delays 
legitimate firearms purchases and allows criminals and other prohibited 
buyers to obtain guns. The hole is the faulty records in the National 
Instant Criminal Background Check System, NICS. Based on a report 
released by Americans for Gun Safety Foundation in January 2002, 
Congress has learned that millions of records are missing from the NICS 
database. Over a 30-month period, 10,000 criminals obtained a firearm 
despite a background check because the records couldn't be checked 
properly within the 3 days allowed by federal law. In addition, 
thousands of other prohibited buyers will never be stopped because very 
few restraining orders, drug abuse or mental disability records are 
kept at all. This report makes it clear that if we are to be serious 
about stopping criminals, wife-beaters and illegal aliens from slipping 
through a background check, we had better fix this broken system.
  Better records mean more accurate background checks--checks which 
stop prohibited buyers while allowing legitimate buyers to be approved. 
And better records put the ``instant'' back into instant check, because 
delays occur when records have to be searched manually. In fact, the 
only reason why criminal background checks sometime take several days 
is because records have to be checked by hand instead of computer.
  The figure is astonishing. There are over 30 million missing records.
  For felony records, the typical state has automated only 58 percent 
of its felony conviction records. The FBI estimates that out of 39 
million felony arrest records, 16 million of them lack final 
disposition information. Without final disposition records, background 
checks must rely on time consuming manual searches of courthouse files 
to approve or deny firearms purchases.
  On the issue of mental health, 33 States keep no mental health 
disqualifying records and no state supplies mental health disqualifying 
records to NICS. The General Accounting Office, GAO, estimates that 2.7 
million mental illness records should be in the NICS databases, but 
less than 100,000 records are available, nearly all from VA mental 
hospitals. States have supplied only 41 mental health records to NICS. 
Combined with the federal records, the GAO estimates that only 8.6 
percent of the records of those disqualified from buying a firearm for 
mental health reasons are accessible on the NICS database.
  In the case of drug abusers, the GAO estimates that only 3 percent of 
the 14 million records of drug abusers are automated, not including 
felons and wanted fugitives. States have supplied only 97 of those 
records to NICS which the GAO estimates as representing less than 0.1 
percent of the total records of those with drug records that would deny 
them a firearm.
  On the issue of domestic violence, 20 States lack a database for 
either domestic violence misdemeanants or temporary restraining orders 
or both, 42 percent of all NICS denials based on restraining orders 
come from one State--Kentucky--which does the best job of automating 
TRO's from the bench. The Department of Justice estimates that nearly 2 
million restraining order records are missing from the database.
  In the case of illegal aliens/non-immigrant status records, the GAO 
estimates that over 2 million illegal alien records are absent from the 
NICS database. Through 2001, NICS had no records of non-immigrants in 
the United States making it impossible to stop visitors to the U.S. on 
tourist or student visas from purchasing firearms.
  The benefits of better records are simple and important. They lead to 
accurate and instant background checks. Better records mean we would be 
able to stop far more prohibited buyers from obtaining a gun than we do 
now. When a restraining order, drug abuse or mental health record is 
missing, nothing in the NICS system indicates a reason to delay the 
sale and search records. NICS simply approves the transaction usually 
within 3 minutes.
  Poor records are why and this legislation will fix the system. This 
bill requires Federal agencies such as the Immigration and 
Naturalization Service, INS, and the VA to provide all records of those 
disqualified from purchasing a firearm to NICS. For INS, it would mean 
sending millions of records of those here on tourist visas, student 
visas, and all other non-immigrant visas to NICS. Each State would be 
allowed to receive a waiver for up to 5 years of the 10 percent 
matching requirement for the National Criminal History Improvement 
Grants, NCHIP, when that state automates and makes available to NICS at 
least 95 percent of records of those disqualified from purchasing a 
firearm. This bill also requires states to automate and send to NICS 
all disqualifying records under Federal and State law, including 
domestic violence misdemeanors, restraining orders, criminal conviction 
misdemeanors, drug abuse and other relevant records to NICS.
  We also provides grants of $250 million per year for 3 years to 
States to improve background check records, automate systems, enhance 
states capacities to perform background checks, supply mental health 
records and domestic violence records to NICS. We also give grants of 
$125 million per year for 3 years to States to assess their systems for 
rapidly getting criminal conviction, domestic violence records and 
other records from the courtroom into the NICS database and for 
improving those systems so as to eliminate the lag time between 
conviction and entry into NICS.
  Better records mean instant checks: 72 percent of background checks 
are approved and completed within minutes, but 5 percent take days to 
complete for one reason only faulty records force law enforcement into 
time consuming searches to locate final disposition records for felony 
and domestic violence convictions. It is our hope that this legislation 
will finally make our records system complete and totally stop 
prohibited buyers from gaining access to firearms while allowing 
legitimate buyers to be approved.

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