The Virginia Tech shooting has brought to light serious inadequacies in the nation's background-check system for gun purchases and has prompted renewed calls to fix it.
Many legal experts now agree that shooter Cho Seung-hui should not have been able to buy a gun at a federally licensed shop because in 2005 a judge had ruled that he was mentally ill and ordered him to seek treatment.
Federal law states that any person "adjudicated as a mental defective" is prohibited from buying firearms.
But Mr. Cho's name was not flagged by the National Instant Criminal Background Check System (NICS) because his name wasn't in it. Virginia officials didn't report the judge's ruling on his mental illness to NICS: They were following a state law that says a person has to be committed to an institution before being prohibited from buying a gun.
Federal law-enforcement officials and gun-violence experts say such communication breakdowns, as well as a significant lack of federal resources to keep NICS current, have resulted in a background-check system that is incomplete, inaccurate, and out of date.
A bill to reform the system has stalled in Congress in the past few years. But its sponsors hope that this year, with the change in leadership and the tragedy in Virginia, the bill will have a better likelihood of passing.
"Our purpose is simply to see to it that if we have an instant background check, that it in fact works. There are significant problems with it, and not only in Virginia," says Rep. John Dingell (D) of Michigan, a former member of the National Rifle Association's board of directors. "We're not putting the money into it, the states aren't putting the effort into it, and there is neither the carrot nor the stick to the degree that there should be to require that the records be properly kept."
The Brady Bill, which became law in 1994, set up the NICS background-check system, which was implemented nationwide in 1998. It set up a database containing criminal histories, as well as a list of prohibited gun buyers – people like convicted felons and underage kids. States are supposed to send their criminal-history databases to the federal government regularly so they can be included in the NICS system. The Brady Bill also allows states to enact their own gun-control initiatives that expand the prohibited list and require things like waiting periods, as long as they meet the federal minimum as well.
But critics say the law is filled with loopholes. One of the biggest concerns is that the regulations apply only to federally licensed gun dealers. Individuals that sell guns privately or at gun shows don't have to do background checks. Between 40 to 50 percent of guns sold in the country annually are sold privately, according to federal estimates.
So even if Cho had been denied a gun at a licensed gun shop, he could have bought one at a nearby gun show, according to Robyn Thomas, executive director of Legal Community Against Violence, a San Francisco-based legal-services organization dedicated to ending gun violence.
Another problem with the system, according to critics, is that if a gun dealer doesn't hear back from state or federal authorities within three days, he or she can sell the gun anyway.
Another key concern of critics: State records sometime don't make it to the federal NICS database. Twenty-five states have computerized only 60 percent of their criminal records. Thirteen states do not share information about domestic-violence restraining orders, and 33 states have not automated or do not share records of mental-health adjudications, as required by the federal law. "Part of the problem is that there is no standardized, centralized way in which that mental-health data is kept," says Ms. Thomas.
The bill to reform NICS, which is co-sponsored by Representative Dingell and Rep. Carolyn McCarthy (D) of New York, would not address the so-called private-sale loophole or extend the three-day limit for background checks, as federal law-enforcement officials have recommended in the past. But it would require state and federal agencies to provide updated and accurate criminal background and mental-health records to the NICS system. It would also create a grant program to help states computerize records.
"While maintaining NICS records ultimately is the responsibility of the states, state budgets are already overburdened," said Representative McCarthy in a statement. "The NICS Improvement Act will give states the resources to eliminate the legal loopholes that allow prohibited individuals from legally purchasing firearms."
Some gun advocates are supporting the reform legislation. But others, like Gun Owners of America, are opposed. "Our view is that if someone is a danger to themselves or society, as apparently many people thought Cho was, then he shouldn't be on the streets," says Erich Pratt, spokesman for Gun Owners of America.
But gun-control advocates contend that if the law worked as it should have, it would have at least been more difficult for Cho to buy a firearm. Other checks would have made a gun purchase even harder.
"In most states, it's harder to get a job at McDonald's than it is a gun," says Paul Helmke, president of the Brady Center to Prevent Gun Violence in Washington. "The American people would be willing to put up with a little more red tape if it stops some of the yellow crime-scene tape."