The premise of 1994’s Brady Act was fairly straightforward: to make sure that dealers run background checks on people who want to buy guns. Research has shown background checks to be extremely effective at keeping guns out of the hands of criminals or the mentally ill.
But things are complicated, and gun lobbies are powerful, and in hindsight this 20-year-old package of laws is starting to look pretty porous.
Today, Hillary Clinton (whose husband signed the Brady Act into law) unveiled an aggressive gun control plan meant in large part to patch up those holes. Here are three of the biggest loopholes Clinton would close, and how:
A glaring exception to the law on background checks is that they’re not required by private occasional sellers, such as sellers at gun shows or on the Internet.
On the Today show Monday morning, Clinton referred to a commonly cited study showing that 40% of gun sales in the U.S. are completed off the books through this loophole. That figure has been shown to be a bit outdated. But other research backs up her point, which is that people who wouldn’t pass a federal background check often find an easy way to get around it by using private sellers. One study of imprisoned gun offenders found only about 13% got their weapons through retailers who ran background checks.
In her plan, Clinton suggests closing this loophole through an executive action that would somehow designate certain private sellers as being “in the business” of selling guns, and therefore subject to requiring background checks. As the Times notes, an executive action on such a hot topic would likely trigger a massive political and legal showdown. But plenty of Democrats would love to skirt Congress on something they’ve been trying to get done for years.
A small percentage of background checks can’t be completed right away, so the Brady Act says that retailers can go ahead and sell a gun if the FBI doesn’t get back to them within 72 hours.
This is how Dylann Roof, the shooter who killed nine people at a Charleston church earlier this year, got his weapon even though he had a pending felony charge that should prevented the sale. A 2013 poll found that two thirds of gun owners wouldn’t mind giving the FBI five days, instead of three, to finish a background check.
The Clinton campaign said she’d get this one done through legislation.
This one requires a legislative fix, too, but only by two words. Under current law, people convicted of misdemeanor domestic violence are blocked from buying guns—but only if they are married to, live with, or have children with their victims. This means that a woman whose boyfriend is convicted of beating her may be able to buy a gun nonetheless. A two-word fix to add the phrase “dating partners” to the law would close this loophole. From my colleague Katie McDonough:
A gun is no less deadly in abusive dating relationships than it is in abusive married relationships, but in a majority of states the law pretends otherwise. According to the Bureau of Justice Statistics, in 2008 48.6% of intimate partner homicides were committed by a dating partner. Of those victims, 70% were women.
Summaries of Clinton’s proposals didn’t mention this one, likely because it’s a state-level issue, but it’s worth mentioning: People who have been issued certain gun permits by their states are exempt from federal background checks. As noted by the Law Center to Prevent Gun Violence, a nonprofit legal coalition, this puts a burden on states to effectively monitor permit holders, and to revoke permits if someone “falls into a prohibited category" (i.e. receives a felony charge or conviction) after they get one.
According to the federal bureau Alcohol, Tobacco, Firearms and Explosives, about half the states issue some sort of permit that can substitute for a federal background check.
Can Hillary Clinton get any of this done? It's a tall mountain to climb, and much of it depends on her ability to get through a Congress that has already defeated some of these proposals several times. Regardless, she'll likely continue to press the issue on the campaign trail. Most Americans support universal background checks—and gun control is also an issue in which Clinton can distinguish herself from her main rival, Sen. Bernie Sanders, who voted against the Brady Act in 1994.
Adam Auriemma edits the Justice section at Fusion.