As more details emerge about the mass shooting in Sutherland Springs, Texas, one thing is becoming increasingly clear: The tragedy was at least in part an institutional gun control failure.
Devin Patrick Kelley—who killed 26 people and wounded another 20 at a Sutherland Springs church on Sunday—was legally prohibited from owning a firearm. While he was serving in the Air Force in 2012, a military court convicted him of assault for strangling his then-wife and fracturing his stepson's skull. (Under the law, that conviction disqualified Kelley from possessing a gun; a federal background check was supposed to prevent him from purchasing one.
But the Air Force ignored its legal duty to report Kelley's conviction to the FBI, so it was never entered into the National Instant Criminal Background Check System (NICS).
The Air Force also failed to report Kelley's apparent escape from a New Mexico mental health facility, where he was being held awaiting trial for assault. Nor did it report the death threats he made against his chain of command, or his attempts to smuggle weapons onto the base where he was stationed to make good on those threats. So when Kelley lied on a background check form about his conviction, about ever having been a fugitive from justice, and about ever having been confined to a mental institution, the NICS system failed to catch it.
The Trace reports that as of December 2016, the Department of Defense has entered only one conviction for domestic violence into the NICS Indices, one of three databases that make up the FBI's NICS background check system. (The other two are the National Criminal Information Center database and the Interstate Identification Index.) That could indicate that Kelley isn't the only oversight in the system.
Defense Department spokesman Tom Crosson tells Reason that he can't currently speak to the NICS Indices numbers, but he did say that the department's Office of the Inspector General was reviewing both the Kelley case and the department's broader "policies, practices, and procedures to determine whether appropriate qualifying information is submitted by the [Defense Department] to the FBI for entry into the National Criminal Information Center [NCIC] database."
If the Defense Department was giving information to the FBI to enter directly into the NCIC database, that could explain why the NICS Indices show no domestic violence reports from the department.
If that is the case however, it raises further questions about how well the background check system manages hundreds of departments entering thousands of convictions into three separate databases relied on by thousands of gun sellers to instantly vet potential customers.
It is clear Kelley fell through these bureaucratic cracks, and other domestic abusers might be falling through them as well.
Rather than focusing on how this current background check system can be better administered and enforced, gun control advocates in Congress have demanded more unspecific restrictions on the ability of law-abiding Americans to possess guns.
Sen. Richard Blumenthal (D-Conn.) said this via Twitter (@SenBlumenthal) shortly after new broke:
Horror, heartbreak, shame. Prayers are important but insufficient. After another unspeakable tragedy, Congress must act – or be complicit.
Sen. Bill Nelson (D-Fl.) echoed Blumenthal's sentiments on Twitter (@SenBillNelson):
Regardless of motive or mental state – enough is enough! We have to find a way to put an end to this senseless violence.
Nelson and Blumenthal are longtime members of the Senate Armed Services Committee which legislates on military affairs, and is responsible for overseeing the Department of Defense. If the DOD failed to administer background checks adequately, these senators failed to fulfill their role as DOD watchdogs.
Blumenthal, to his credit, said in a CNN interview this morning he intended to send a letter to the Secretary of Defense to find out what exactly DOD is doing to enforce background check laws already on the books. "The best laws on the books are dead letter if they are not enforced," he said. Belated, but welcome.
And yet, in the same sentence in the same interview Blumenthal demands Congress pass more background checks.
Blumenthal's demand that something be done shows the senator is more interested in restricting the rights of law-abiding citizens to own guns than in understanding out how a violent criminal disgrace to his military uniform was so easily able to get his hands on them.
A better approach might involve waiting to find out how the current system of background checks failed before pushing for more background checks.