SORRY, SESSIONS: Here’s Why The Attorney General’s New Policy On Enforcing Background Checks Will Fail

Jeff Sessions Getty Images/Win McNamee

John Lott President, Crime Prevention Research Center
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U.S. Attorney General Jeff Sessions promised last month to “swiftly and aggressively prosecute” prohibited people who try to buy guns. He even has a slogan for his approach, calling them “Lie-and-Try” prosecutions.

Prohibited people who try to buy a gun are committing a crime, and should be prosecuted. They commit perjury by lying on the purchase form about their eligibility, and can be punished by up to five years in prison. But while Sessions is obviously well motivated, he is going to be sorely disappointed if he thinks that there are a lot of these cases to prosecute.

One would think that there would be more cases. From 2006 to 2015, the National Instant Criminal Background Check System (NICS) denied gun purchases by 826,144 people. But all those denials led to only 488 prosecutions in the whole ten-year period — fewer than 50 a year. Less than half of these ended in convictions.

Sessions announced that they had made progress and “already increased federal gun prosecutions to a 10-year high.” To put that in perspective, the highest annual number of NICS prosecutions for prohibited purchases was 122 in 2007. Even with a ten-fold increase in that number, prosecutions would still constitute only 1 percent of the 120,000 denials we are now seeing each year.

Though it was fodder for a lot of political cheap shots, the lack of prosecutions from 2006 to 2015 wasn’t a result of Obama or Bush not wanting to enforce the law. The vast majority of these denials just aren’t real cases. These “false positives” are the result of an inefficient system that relies only on birthdates and rough phonetic similarity of names. As a result, the system often confuses law-abiding citizens with criminals.

Criminals might be stupid, but they are not so dumb as to purchase their guns through background checks. They get guns just as easily as drug addicts get drugs, which isn’t too surprising given that drug dealers often have access to gun suppliers. Virtually the only people stopped from buying guns are law-abiding people whose names the background check system confuses with those of criminals. These few additional cases mean going mean prosecuting individuals whose offenses are decades old. These people are hardly dangerous criminals.

And with such an inaccurate background check system, notifying local authorities of a prohibited purchase is worse than useless. A new Senate bill by Senators Pat Toomey (R-PA) and Chris Coons (D-DE) proposes to do just that. But unless the problem of false positives is solved, this will just cause police to be deluged with many tens of thousands of false alerts each year.

The Fix NICS bill working its way through Congress will also likely create more problems than it actually fixes. Throwing more names into the system without fixing the false positives problem will mean denying law-abiding Americans their right to buy firearms.

The people most impacted by the false positives are poor minorities, since people tend to have names similar to others in their racial groups. Because a high proportion of Black and Hispanic males are prohibited from owning guns, law-abiding minority males face the highest rate of background-check mistakes.

Fortunately, there’s an easy fix. The government should be required to use all of the information that it collects when gun buyers fill out the form to buy a gun (e.g., exact names, social security numbers, and addresses). If private companies constantly confused innocent people with criminals when doing background checks on employees, lawsuits would drive them out of business.

Many Democrats don’t want to fix this because it would eliminate their big talking point about 3 million dangerous or prohibited people having been stopped from buying guns since the instant background check system went into effect in 1998. Many Republicans have also invested a lot in attacking Obama and the Democrats for not enforcing gun control laws and prosecuting more prohibited purchasers.

Unfortunately, the Fix NICS bill that Congress looks set to pass this week as part of the Omnibus spending bill doesn’t actually fix this major problem with the system. Instead by putting more names in the system they will only exacerbate the false positive problem without being likely to catch any prohibited people.

Everyone wants to stop dangerous people from buying guns. But let’s fix the system so it stops those who are at risk of causing harm, not law-abiding citizens who want to protect themselves and their family.

John R. Lott, Jr. is the president of the Crime Prevention Research Center and the author more recently of “The War on Guns.”

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.