Traverse City Record-Eagle

April 20, 2013

Fact Check: Biden revises NRA history on background checks

By FactCheck.org
Traverse City Record-Eagle

---- — Vice President Joe Biden exaggerates when he waxes nostalgic about the “good old days” — a time when “everybody, including the National Rifle Association, thought background checks made sense.” Biden’s office says he was referring to the NRA’s support for background checks in the early 1990s and its stated support for expanding background checks to include gun shows in 1999.

But vice president’s sentimental journey rides roughshod over the facts:

In 1991, the NRA endorsed legislation creating a national system of “instant background checks” as an alternative to a seven-day waiting period contained in the proposed Brady Handgun Violence Prevention Act. But the technology didn’t exist yet. A gun-control advocate said the “instant check bill would have completely gutted the Brady bill by eliminating the waiting period.”

In 1993, the Brady bill became law with compromise language on background checks. The law required a five-day waiting period until an instant background check system could be established. Background checks would apply only to federally licensed firearm dealers, and the NRA said it opposed attempts to expand background checks to all gun sales as “foolish.”

In 1998, on the day that the FBI launched the instant check system, the NRA sued to bar the federal agency from keeping identifying information on gun buyers for 90 days, claiming the brief retention of records amounted to a de facto gun registry. Although the NRA lost its suit, Congress would later mandate that the FBI destroy its records within 24 hours of an approved gun sale.

In 1999, Congress considered expanding background checks to include gun shows after the Columbine High School massacre. The NRA supported a narrow expansion of background checks in a House bill that then-President Clinton said was “plainly ghostwritten by the NRA.” The NRA opposed a more expansive Senate version. The Senate sponsor said that “the gun lobby killed the legislation in House-Senate conference.”

The vice president spoke about the administration’s proposal to reduce gun violence on April 9 at the White House to a group of law enforcement officials. He said relatives of those killed at Sandy Hook Elementary School in Newtown, Conn., told him that they could not understand why any member of Congress could oppose requiring background checks on all gun sales. Currently, the law requires such checks for people buying guns from federally licensed firearm dealers, but not for private sales, including at gun shows and on the Internet.

In making his case for expanding background checks, Biden recalled his days in Congress when the NRA supported background checks.

Biden, April 9: Look, I thought we reached a consensus on that convicted felons, that people with serious mental illness and adjudicated as such, that fugitives, that wife beaters - they shouldn’t be able to own a gun. If I’m not mistaken, because I did this last time in ‘84, everybody - including the NRA - hought background checks made sense. Remember that? Remember those good old days? It made sense. Keep guns out of the hands of those folks.

This is a curious case of Biden looking at the NRA’s history on background checks through rose-colored glasses.

Biden’s office cited the NRA’s support for the creation of the National Instant Criminal Background Check System, or NICS, in the early 1990s. It also referred us to a Huffington Post story about how the NRA supported expanding background checks to gun shows after the April 20, 1999, shooting at Columbine High School. (For the record, Biden meant to say 1994 - not 1984 - although the dates don’t necessarily matter.)

Let’s first look at the creation of NICS. As we say above, the NRA supported it - but as an alternative to a five-day waiting period and only for licensed gun dealers, and the group has been opposed to its expansion to all private sales ever since.

The concept of NICS came up in 1991, when the Brady bill was being considered as part of a crime bill offered by then-Sen. Joe Biden of Delaware. In an essay on the history of the Brady law, Richard Aborn, a former Manhattan assistant district attorney and a board member of Handgun Control Inc., wrote that “the NRA tried a last-ditch effort” to block the Brady bill by working with Sen. Ted Stevens of Alaska on an amendment to create an instant background check system.

Aborn, 1994: The fatal flaw in the instant check bill was that there was no technology available to conduct the background check instantaneously. The instant check bill would have completely gutted the Brady bill by eliminating the waiting period, thereby depriving law enforcement officials of the time necessary to conduct a background check of the purchaser.

Stevens’ amendment failed, 44-54, in a vote on June 28, 1991. Instead, the Senate that same day passed a compromise amendment by a 67-32 vote that would impose a waiting period of five business days to allow local law enforcement the opportunity to perform a background check. The five-day waiting period would be in effect until the creation of a national instant background check system.

Biden’s crime bill that year passed the Senate, but died in the House. It was the third time that the Brady bill had been introduced and the third time that it had failed to win congressional approval. The fourth time was the charm for gun-control advocates.

On Feb. 22, 1993, Democratic Rep. Charles Schumer of New York, who is now a senator, reintroduced the Brady Handgun Violence Prevention Act. His version included the 1991 compromise language on a five-day waiting period and the creation of an instant check system. In his essay on the history of the Brady bill, Aborn says the bill had unprecedented support and momentum from the start.

Aborn, 1994: When the 103d Congress convened, a record number of sponsors reintroduced the Brady Bill into Congress. … A week earlier in his State of the Union Address, President Clinton had declared to rousing applause: “If you’ll pass the Brady Bill, I’ll sure sign it.” For the first time, a sitting President had stated that he was willing to sign such a bill. In addition, in the 103d Congress, unlike in previous Congresses, the Brady Bill would finally stand on its own, unencumbered by any crime legislation.

As the bill neared final passage, the NRA sought to make changes. GOP Rep. George Gekas of Pennsylvania won approval for an NRA-backed amendment that would end the five-day waiting period after five years, even if the instant check system wasn’t operational. Bill McIntyre, an NRA spokesman, was quoted in a Gekas press release saying that the NRA “worked closely with him on the language and to round up support for it.”

“We recognize a bill is going to become law on this,” Wayne LaPierre, the NRA’s chief executive officer, said in an Associated Press story at the time. “We want to make it the best version possible.”

Schumer told New York Newsday that Gekas and another House member who offered a second NRA-backed amendment were under public pressure to vote for the bill, “but they still felt the NRA breathing down their necks, so they threw them a bone.”

Clinton signed the Brady bill on Nov. 30, 1993, and, as required by law, the instant background checks took effect five years later on Nov. 30, 1998. But that same day - as we wrote once before - the NRA filed a lawsuit challenging the NICS regulations, claiming that the rules allowing the FBI to maintain an “audit log” for up to six months (later reduced by the Department of Justice to 90 days) amounted to a de facto firearm registry, contrary to the Brady Act. The NRA suit was dismissed, but since 2004, Congress has inserted language in annual spending bills requiring the FBI to destroy firearm transfer records within 24 hours of approval - as Congress did most recently in fiscal year 2012, when the records requirement was made permanent, according to an Aug. 3, 2012, Congressional Research Service report (page 76) on gun-control legislation.

A month after the Brady bill was signed into law in 1993, the Los Angeles Times wrote about Schumer’s effort to close the so-called gun show loophole, which the paper described as “a loophole large enough to sneak a crate of 9-millimeter pistols through - because they apply only to licensed dealers.” NRA lobbyist Joseph Phillips told the Times that such legislation would be “foolish.”

That was the beginning of a legislative battle over closing the so-called gun show loophole that flared up again in 1999 - which the vice president’s office also cites in support of Biden’s claim about the “good old days.”

Biden’s office referred us to a Jan. 31 story on the Huffington Post website that carried the headline “NRA Supported Universal Background Checks After Columbine Massacre.” That story starts, “In May of 1999, under intense pressure following the Columbine High School massacre, National Rifle Association CEO Wayne LaPierre told Congress that the gun lobby supported instant background checks at gun shows.” LaPierre testified five weeks after the April 20,1999, massacre at Columbine.

But LaPierre’s stated support for expanding background checks was conditional even then, and he specifically opposed language proposed by Democratic Sen. Frank Lautenberg of New Jersey. This is what LaPierre said at that congressional hearing:

LaPierre, May 27, 1999: We think it’s reasonable to provide for instant checks at gun shows just like at gun stores and pawn shops. But what’s unreasonable is how the proposed Lautenberg legislation ignores the 250,000 prohibited people like felons who’ve walked away from gun stores - instead of being prosecuted for a federal felony for trying to buy a gun.

In its story of the Senate hearing, the Atlanta Journal Constitution said LaPierre didn’t see the need for new gun legislation and quoted him as saying Lautenberg’s proposal in particular would be “a red tape nightmare.”

Atlanta Journal Constitution, May 28, 1999: LaPierre, whose 3 million-member organization waged a fierce lobbying effort against aspects of the Senate bill, urged Congress to enforce existing laws, rather than pass new ones.

LaPierre said the NRA would accept “instant” background checks at gun shows, but would reject the current language of the Senate bill, which allows law enforcement three days to conduct the checks and defines gun shows as any gathering where more than 50 firearms are sold.

“This is a red tape nightmare,” LaPierre said. “It’s a massive . . . federal government bill that gets into everyone’s life if you just mention the word ‘firearm.’“

LaPierre was referring to a Lautenberg proposal on instant background checks at gun shows that was included in a juvenile justice bill sponsored by then-Sen. Joe Biden. Lautenberg’s amendment to Biden’s bill passed 51-50 on May 20,1999, with Vice President Gore casting the tie-breaking vote.

In an editorial headlined “The NRA Lobby Strikes Back,” the Washington Post wrote that the House responded to Lautenberg’s proposal by introducing a competing NRA-backed bill that the editorial writers called a “decoy ‘background check’ measure.”

Washington Post, June 7, 1999: The NRA leaders’ assault on the Senate bill is camouflaged in a decoy “background check” measure they tout as cutting out “all the bureaucracy” in the Senate bill. Translation: Pull all teeth in the Senate bill and let those gun-show side deals flow unregulated.

The NRA paints its proposal as a “better way” to require background checks at gun shows. It supports instant criminal checks but would kill Senate protections that call for retaining this information for 90 days.

The competing bills resulted in congressional gridlock. The House passed its version in June, and a House-Senate conference committee was created to negotiate a compromise bill. But the New York Times wrote that Congress adjourned for recess in August 1999 without congressional negotiators reconciling the two bills. The Times said the NRA was “particularly concerned about conferees’ approving any measure to regulate gun shows that approaches the strictness of a provision approved by the Senate.”

The senator, on his website, blamed the “gun lobby” for killing the legislation in a House-Senate conference.

Office of Sen. Frank Lautenberg: In 1999, Sen. Lautenberg introduced the first bill in Congress to close the gun show loophole. Later that year, in the wake of the Columbine tragedy, the Senate passed Sen. Lautenberg’s legislation to close the gun show loophole as an amendment to a juvenile justice bill. The legislation passed by one vote, with Vice President Gore casting the tiebreaking vote. However, the gun lobby killed the legislation in House-Senate conference.

We can’t say why the vice president chooses to ignore this legislative history. But, in doing so, the gun-control advocates in his audience that day may have come away with a different impression of the NRA than the gun-control advocates did in the “good old days” of the 1990s.

— By Eugene Kiely for FactCheck.org