Public Comment

Gun Regulation and Surveillance by the State

By Thomas Lord
Friday January 18, 2013 - 02:09:00 PM

In reaction to recent mass shootings, liberals and progressives across the nation are allegedly enthusiastic about beefing up federal gun regulation. The NRA is finally on the ropes, it is oddly presumed against all evidence. Now is the time for common sense regulation, of some sort, because of Australia and London "Bobbies" or something.

Common sense is a tricky bird. We really ought to step back and consider if these "common sense" measures will really improve public safety and what else these measures might do. 

One of the proposals is to expand the use of the federal database for background checks. Checks would be required even for private sales at gun shows. States would be pressured to more fully report people who are forbidden from buying because of certain kinds of encounter with the mental health system. 

There is some history here. Starting in 1993 the federal government used to broadly require states to supply certain mental health records to the FBI for open-ended purposes. They were entrusted to surveille people like this probably because of the FBI's decades long history of respecting privacy and never abusing its powers. The mental health part of the background check for gun purchases grew out of that reporting requirement. 

Alas, in 1997 the requirement that states report mental health records to the FBI was struck down by the court. Today, many states voluntarily participate barely or not at all in the program, though a few participate with seeming enthusiasm. 

Interestingly, even the NRA who generally resist gun regulation complain about the situation with mental health reporting. They have endorsed the idea of making mental health record reporting more complete. 

Will it work? What will it do? 

I'm not sure exactly what the effect on violent crime will be if the database is beefed up with greater mental health reporting and wider use. I'm skeptical that it will make a huge difference to public safety one way or another but none of us really know. 

There's only an uncertain gain from the proposal but there are some certain costs: 

a) The proposal is to expand unaccountable, universal, domestic surveillance by federal law enforcement. 

b) In particular, it proposes attempting to track everyone who is ever involuntarily committed or who are subject to certain kinds of court orders related to mental illness. (And it is a virtual certainty that such a list will include many people who would pose no special risk as gun buyers.) 

Surely this information can't be abused?

It is commonly believed that, at least on paper, the National Instant Criminal Background Check System (NICS) can only be used for the very narrow purpose of regulating gun sales. Unfortunately, that's a bit misleading. 

It's true that the law itself specifies the creation of the NICS database, who can use it, and for which (narrow) purposes. The law explicitly specifies auditing policies aimed at preventing abuse. 

There is a big loophole in the law, though. The law specifies restrictions on how the NICS database itself may be used but it does not so narrowly limit what the FBI can do with records submitted for addition to the NICS. 

When the NICS staff get a record from a state they update the NICS database itself but they are also assigned the duty of updating other (less regulated) federal databases from those same records. 

In effect, the FBI may not (per law) directly use the NICS database for "general law enforcement" purposes but the FBI can in effect make a copy of all incoming records to the NICS, and keep those in less restricted databases. 

Here is a quote from Law Enforcement Records Management Systems (RMSs) as They Pertain to FBI Programs and Systems, a manual published by the FBI): 

"The NICS Section [the department that runs NICS] also is instrumental in effecting the update of applicable federal, state, and local automated criminal history databases to ensure the availability of current record information for future inquiries by law enforcement agencies." 

So is all this really -- as a practical matter, legislative intent aside -- really about "common sense" gun control?