By now, almost everyone has learned that the Texas church shooter was a man who was not allowed, under federal law, to possess a firearm. Despite the prohibition found in 18 U.S.C. § 922(g) that prevents a person convicted of domestic violence from possessing a firearm, the shooter, who had been convicted of domestic assault and sentenced to a year of confinement by an Air Force court, was able to purchase a rifle from a federal firearms licensee in Texas.

When he bought the gun, Devin Kelley filled out a Form 4473 answering each question in a way that would not disqualify him. Of course he lied when he came to the question, “Have you ever been convicted in any court of a misdemeanor crime of domestic violence?”

To be clear, suspicious retailers have refused to sell guns to some customers, but it is not up to the retailer to determine whether the customer is in fact disqualified to possess a gun under 18 U.S.C. § 922(g). Once the application is completed by the customer and signed, the retailer, who must possess a federal firearms license, sends the applicant’s name to a computer system maintained by the FBI called the National Instant Criminal Background Check System (NICS). This system is mandated by federal law as a means to verify compliance with 18 U.S.C. § 922(g) but, contrary to its name, it is not really a background check. It’s a database. The data it contains, primarily information related to criminal convictions, drug use, and mental health issues, is not gathered by the FBI, but instead is supplied by various branches of government and states, some of whom cooperate less than others. For example, certain states run their own background check systems and do not contribute information to the NICS database at all. Based on the Tenth Amendment and a concept known as the anti-commandeering doctrine, the federal government cannot compel the states to take the time or spend the money to submit or compile data for the NICS database. Doing so is voluntary.

What is truly surprising in the case of the Texas shooter is that his disqualifying conviction was at the hands of a federal court martial and was not in the NICS database. There is simply no excuse for this military service branch of the federal government not to comply fully with the Brady Act by submitting data to the NICS database. Clearly the government can and must do better.

Critics have said that the shooter would have been able to get a gun on the secondary market, which does not require a NICS check to transfer a gun. Maybe. Maybe not. That’s not the point. The point is that the federal government must do a better job of policing itself and put systems into place to assure that this will never happen again. And frankly, state governments should be induced to fully cooperate with NICS by gathering and supplying timely data that would prevent a person like this, or another Dylann Roof, who also slipped through the NICS cracks, from buying a gun from a dealer. In the 70’s the federal government threatened to withhold highway funds from any state that did not adopt a gas-saving 55 MPH speed limit. Surely, the feds can do something like this again should they care enough to do so.

Contact Jim Astrachan at 410-783-3550 (jastrachan@agtlawyers.com).