Republicans opposing gun-control legislation in the Senate are readying several arguments that could be viewed as deflections and excuses. In fact, they are raising complex questions about mental health, federal enforcement, and gun-purchase records that deserve the thorough and intense debate they are about to receive.
The Senate voted 68-31 Thursday to start the debate on gun legislation with no ground rules about how long the floor fight will be. The measure would create universal background checks, tighten penalties on gun trafficking, and increase school-safety grants. Senate Majority Leader Harry Reid has pledged an open amendment process, which prompted 16 Republicans to join Democrats in opposing a filibuster mounted by tea-party favorites Sens. Ted Cruz, R-Texas, Mike Lee, R-Utah, and Rand Paul, R-Ky.
The three senators are threatening to throw up additional hurdles to the debate, but a Democratic aide says a vote on a background check amendment is teed up for next week. Other votes are still being negotiated.
Yet talk in the Senate is fast bypassing the generally petty quarrels about parliamentary procedure and delving into thoughtful questions about preventing gun violence. Pro-gun Republicans who are widely considered to be "no" votes on final passage of any gun-control measure are raising arguments that actually enrich the gun conversation.
1. We should be focusing on mental health. They are right. Mental health is the ugly kid sister in the health care debate that gets ignored by all but the most passionate policymakers, many of whom have personal experience with mental disabilities. Sen. John Cornyn, R-Texas, protested on the Senate floor Thursday that Republicans and Democrats were fighting over the wrong issue. The issue isn’t the guns, he said. It’s mental health. “Let’s make sure that guns aren’t getting into the hands of people we all agree shouldn’t have them.”
The legal connection between gun buying and mental health is uneven and unfair. There is no single definition of an “adjudicated” mental-health problem that bars a person from buying a gun, and they can vary from court to court and case to case. Many states don’t report mental-health cases to the feds for fear of violating privacy laws or because they lack the resources. Mental-health advocates fear that widening the gun-owning restrictions on people with mental-health problems will deter people such as veterans or police officers from seeking treatment. Once they are in treatment, what reassurances do they have that they won’t be banned from owning a gun?
Sen. Lindsey Graham, R-S.C., a pro-gun Republican, sponsors legislation that would require states to report adjudicated mental-health cases to the national database of people barred from gun purchases, clearing up some privacy questions. But Graham’s bill also would give people on that list a chance to prove they are rehabilitated or that they aren’t a threat to themselves or society.
Gun-control advocates hate this bill because they say it would make it easier for people with mental-health problems to buy guns. Graham says he’s only trying to be fair. “We’re trying to make sure that seeking treatment—you know, we all go through tough times—does not deny you your Second Amendment rights. So we’re doing a balance here,” he said.
2. We should be prosecuting the criminals who try to buy guns. Yes we should. Cruz held an impromptu press conference just off the Senate floor after his initial bid to block the gun legislation failed. He said it was outrageous that the government isn’t going after unlawful gun buyers. “We should have the law enforcement resources for prosecuting those felons,” he said.
Cruz may not realize it, but he is repeating talking points that have been circulated for years by the gun-control advocacy group Mayors Against Illegal Guns. The organization bemoans that federal prosecutors don’t go after easy cases—people who try to buy guns when they know they can’t pass a background check—because the laws are confusing and overlapping. Agencies lack the resources to pursue all unlawful gun-buying cases, and the feds tend to not coordinate effectively with local police units.
A Justice Department inspector general’s report from November 2010 found that U.S. attorneys’ offices decline to go after 32 percent of the referrals in which a person lies on a background check and 24 percent of the referrals involving people dealing firearms without a license. Mayors Against Illegal Guns says the problem deserves a national solution—a consistent federal law on gun trafficking and active alerts to local police officers when prohibited buyers fail a background check.
3. We are moving toward a national gun registry. Cruz was immediately scolded Thursday when he claimed the legislation on the Senate floor would lead to a national registry of gun owners. Several reporters reminded him that the current law explicitly prohibits such a thing, and the legislation on the Senate floor would reiterate that point. “The Justice Department has said that universal background checks can only work if there is a full registry,” he replied.
Cruz’s claim is misleading, but it is still worth exploring in the context of the potential new legal requirements for gun sellers that would come with an expanded background-check system. Prosecutors need information about gun sales in order to trace them when they show up at crime scenes.
If background checks are expanded to include sales at gun shows or over the Internet, that would make every seller some type of licensed dealer, according to Sen. Tom Coburn, R-Okla. That would involve purchase records and extra costs and legal responsibility. It’s not worth it. “You could make a deal with the guy to sell it to you later,” Coburn said.
Coburn has proposed doing background checks without purchase records, but gun-control advocates say that that would severely inhibit law-enforcement efforts. Right now, a gun at a crime scene can be traced to the dealer who sold it, and subsequently, to the last person who bought it legally. Those are important clues in combating gun trafficking, a concept that Republicans and Democrats generally support.