The Tucson shooter, Jared Loughner, had a history of drug arrests, drug abuse and mental health issues. He was nonetheless able to pass a federal background check and buy the Glock pistol and high-capacity magazines he used to kill six people and seriously injure 13 others. Why? Because the federal background check system has critical gaps and is chronically underfunded - even though Congress and President George W. Bush reformed the program after the Virginia Tech massacre.
The shootings in Arizona supply the latest example of the system's serious flaws. Under federal law, drug abusers and addicts are prohibited from buying guns. Loughner was arrested on drug charges in 2007 and rejected from enlistment from the U.S. Army in 2008 after admitting to habitual drug use. Less than a year later, he passed a background check and bought a shotgun. If the system had worked and records were available to demonstrate Loughner's drug offense and abuse, he would have failed that background check.
This is not the first time the failure to obtain and maintain relevant records in the National Instant Criminal Background Check System (NICS) allowed a dangerous person to slip through cracks in the law. On April 16, 2007, Seung-Hui Cho shot and killed 32 people at Virginia Tech before taking his own life. Cho was found to be a danger to himself by a special justice of the Montgomery County General District Court on December 14, 2005. Therefore, under federal law, Cho could not purchase any firearm. But the records of his mental health problem weren't in the NICS system because the general practice at the time was to only submit involuntary inpatient mental health orders, even though outpatient orders are also disqualifying under federal law.
In the wake of Virginia Tech, there was a national consensus to require better reporting of mental health records to the NICS system, and Congress responded. Less than two months after the shootings, the House unanimously passed the NICS Improvement Amendments Act of 2007, which created incentives for states to improve the reporting of mental health information into background check system. The Senate passed an amended bill, again unanimously, later that year. President George W. Bush signed the bill into law on January 8, 2008.
The number of mental health NICS records has increased significantly under the new law, but there is much more to be done:
* There were 298,571 mental health records at the end of 2006.
* There were 1,107,758 mental health records at the end of 2010.
* The best available estimates indicate that there are more than 1,000,000 mental health records still missing, along with millions of other records on various types of prohibited purchasers.
Some states have made dramatic progress:
* According to the most recent state-specific data available – as of March 31, 2010 – three states have submitted more than 100,000 records:
o California: 256,106, an increase from 21 records at the end of 2006.
o New York: 154,962, an increase from 1 record at the end of 2006.
o Virginia: 139,185, an increase from 78,478 records at the end of 2006.
* Arizona has also made some progress:
o Arizona has submitted 5,036 records, up from zero at the end of 2006.
Still, many states have made little or no progress reporting largely because Congress failed to follow through with funding. Federal appropriators have granted only 5.3% of the authorized amount from FY 2009 through FY 2011:
$10 million (5.3%)
$20 million (5.3%)
$20 million* (5.3%)
*Continuing Resolution funded NICS Improvement Act program at FY10 level. FY11 appropriations legislation has not been enacted.
In part as a result of chronic underfunding, ten states still have no people flagged as mentally ill in NICS: Alaska, Delaware, Hawaii, Idaho, Massachusetts, Minnesota, New Mexico, North Dakota, Pennsylvania and Rhode Island.
Eighteen more states and the District of Columbia still have fewer than 100 people listed as mentally ill in NICS: Iowa, Utah, Maryland, Vermont, Maine, Illinois, South Carolina, New Jersey, Kentucky, Montana, Wyoming, Mississippi, New Hampshire, Oklahoma, Louisiana, Nebraska, Oregon, and South Dakota.
Millions of records are still missing. As of December 31, 2011, only 2,092 people are listed as drug abusers or addicts in NICS.