A Background Check We Need

By | 2018-02-22T15:58:56+00:00 February 22nd, 2018|
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The February 14 shooting in Parkland, Florida has made it embarrassingly clear that our system of controlling guns through background checks is seriously flawed. In fact, it is fundamentally misconceived.

Gun control is supposed to keep firearms out of the hands of persons who might reasonably be expected to misuse them—“misuse” broadly meaning turn them against humans for purposes other than self-defense. The National Instant Criminal Background Check System (NICS) flags 11 categories of disqualifying offenses, but only two—those concerning restraining orders or criminal convictions for domestic abuse—specifically include behaviors that cause or threaten harm to others.

The most capacious category is a conviction of any crime carrying a sentence of more than one year in prison; but this category would include many crimes not involving violence against others, while also overlooking convictions for many offenses that might have involved some aggression but brought lesser charges and sentences because no serious harm occurred. All the other categories (except domestic abuse) are subject to the same criticism. The NICS system probably denies gun rights to many people who, in fact, are at little risk of misusing them.

At the same time, this system did not screen out the Florida shooter, a future mass murderer whose atrocity was preceded by a long history of violent encounters with others. Even though the killer is the ultimate misuser of firearms, and thus the type of person most needing to be prevented from obtaining or possessing them, he is also the type least likely to be detected by the current NICS. At 19, his conduct had only recently come within the full scope of the adult justice system, and his symptomatic behaviors did not in themselves cause harm serious enough to require intervention by law enforcement. Schools, social service agencies, and custodial adults routinely view juvenile offenders as wards to be cared for rather than as lawbreakers to be punished, and they are inclined to protect offenders from the punishments and stigmas of the criminal justice system.

This priority is explicit in the Broward County school discipline policy. But, as this most recent school shooter’s case illustrates, keeping youthful offenders out of the hands of the police has the incidental effect of sidestepping the criminal record that otherwise might disqualify them for gun ownership later.

In short, the NICS system doesn’t merely fail to screen out the persons most likely to use firearms aggressively; its design scarcely attempts to screen them out. NICS should be a tightly focused system of profiling likely abusers of firearms, with due process protections.

The NICS categories could very well be narrowed to disqualify fewer people, provided that they were modified to include the specific kinds of aggression that reliably indicate a propensity to use guns to do harm. Although loosely speaking the profiling criteria seem to call for a medical diagnosis (“mental illness”), it would not be ideal to rely heavily upon professional therapists to address an issue of public safety, especially since many forms of diagnosed mental illness (like incapacity to handle one’s finances) are not predictive of violence, and therapists are understandably reluctant to stigmatize patients unnecessarily. But the problem of firearms abuse can be substantially disentangled from medical diagnoses of “mental illness,” because there is at least one predictor of violent aggression that laypersons can identify by themselves: deliberate cruelty to animals (i.e.. torture and mutilation, acts designated as “aggravated cruelty” or a similar term in many state laws). There is a robust body of research connecting deliberate cruelty to animals to violence against humans, including mass killings. Apparently, that was the case with the Florida shooter. His cruelty toward animals was well-documented.

Many states already have laws criminalizing aggravated animal cruelty that carry sentences serious enough that the existing NICS system would flag a convicted offender. But this obviously has not successfully excluded malicious animal abusers from purchasing firearms, because the crimes are not prosecuted diligently enough, and many offenders, if they are arrested at all (the Florida school shooter wasn’t), are probably charged with the lesser crime of simple animal abuse, which carries lesser penalties that current NICS background checks don’t flag. Doubtless the reluctance to bring prosecutions for aggravated animal cruelty is especially great when the offender is a juvenile. These discretionary judgments of judicial and school authorities may be difficult to change.

The goal of excluding likely firearms abusers would not be achieved by disqualifying persons convicted of simple animal abuse, because this category mainly encompasses offenses of negligence and commercial exploitation that are not indicative of violence against humans. Police departments would have to be encouraged to pursue aggravated animal cruelty more vigorously, and courts would have to be discouraged from allowing defendants to bargain for a lesser charge. State legislatures might want to consider whether reducing the statutory penalties for aggravated animal cruelty might lower community resistance to charging juvenile offenders. If less harsh penalties achieved a marked increase in arrests and convictions, more potential offenders might be deterred.

A system of background checks that filtered out malicious animal abusers would reduce the number of dangerous people with access to guns, and probably also the number of mass shootings. With less egregious misuse of firearms and more refined identification of likely misusers, some classes of lower-risk persons swept up by the existing crude system could eventually have their Second Amendment rights restored.

About the Author:

Bruce Heiden
Bruce Heiden is professor of classics at The Ohio State University.