Responding to public outcries for stronger gun regulations in the wake of the Stoneman Douglas massacre, Attorney General Jeff Sessions directed Justice Department officials to “swiftly and aggressively” prosecute individuals who lie on federal background check forms in an effort to illegally obtain a firearm. In the same vein, a bipartisan group of Senators, led by Democrat Chris Coons of Delaware and Marco Rubio of Florida, introduced legislation that would require federal law enforcement agencies to alert state authorities within 24 hours when individuals “lie and try” to purchase firearms of any kind. Although lying on a federal background check form is a felony, the crime is rarely prosecuted.
Over the past several years, lawmakers who have been reluctant to vote in favor of new gun control legislation have argued for stricter enforcement of existing federal gun laws in the alternative. Senator Ted Cruz of Texas, who has vehemently opposed every effort to overhaul the federal background check system or renew the assault weapons ban, recently maligned Former President Obama for prosecuting few people for lying on federal background check forms. “In 2010, 48,000 felons and fugitives lied and illegally tried to purchase guns. They prosecuted only forty-four of them…that is a felony, to lie on those forms,” said Cruz. “The Obama administration didn’t prosecute those cases.” Similarly, Former Congressman Jason Chaffetz raised similar grievances in an op-ed published last month by FoxNews. “Before we talk about new gun laws, perhaps it’s time we started to enforce the ones we’ve already passed,” wrote Chaffetz. “All the laws and restrictions in the world are meaningless if we refuse to enforce them.”
Such claims are not entirely baseless. A report published by the Transactional Records Access Clearinghouse, a research group associated with Syracuse University, found that federal weapons prosecutions declined to their lowest levels in a decade under the Obama administration. A harder look at the numbers, though, suggests that such prosecutions have never been a priority for any administration, Republican or Democratic. In fact, neither the Bush administration nor Obama administration ever prosecuted more than a fraction of a percent those who failed a criminal background check.
A number of plausible explanations for the low number of prosecutions have been proffered. In 2004, a report on the enforcement of Brady Act violations identified through the National Instant Criminal Background Check System stated that the Justice Department has been reluctant to prosecute cases of individuals lying on federal background check forms because of their lack of “jury appeal.” The report found that in some cases, the factors prohibiting someone from possessing a firearm were nonviolent or decades old, and in others, prosecutors found proving awareness of the prohibition or intent to lie on a form was particularly daunting.
Sarah Trumble, a policy analyst with Everytown for Gun Safety, a nonprofit organization which advocates for gun control, blames the language employed in federal gun statutes themselves for the low rate of related prosecutions. “It is true that gun laws are vastly under-enforced, but the reason that they're under-enforced is not because the administration or law enforcement has failed: It's because they're written in a way that makes them impossible to enforce — intentionally," said Trumble. "They're too vague to prosecute, the standards are too high to meet, the penalties are too low to be a deterrent and there's too little evidence to prosecute.”
Others are not so persuaded. John Malcom, a former prosecutor and senior fellow at the Heritage Foundation, a conservative think tank, opined that federal gun laws are not “so loose that they are being incapable of successful enforcement actions.” Malcolm further suggested that “if [the Justice Department] devoted more resources to prosecute these laws, they could.”
Nevertheless, given the difficulty of obtaining related convictions, the Justice Department has traditionally prioritized prosecuting prohibited persons who actually managed to evade the federal background check system and acquire a gun illegally, as opposed to those who lied on a form but were ultimately stopped from obtaining a weapon. Additionally, it is worth noting that in 2001 a memorandum issued by Former Attorney General John Ashcroft directed the Justice Department to "make it a priority to enforce the law against those persons who attempt to subvert the legitimate crime prevention objectives of the Brady Act and to incorporate this new focus into [their] comprehensive prosecutive efforts.” As such, it is fair to say that Sessions is not the first Attorney General to promise a crackdown on individuals who lie on federal background check forms.
It ought to be remembered that Nikolas Cruz, the Stoneman Douglas shooter, passed a federal background check without lying. He killed seventeen people. Omar Mateen, the Pulse nightclub shooter, passed a federal background check without lying. He killed forty-nine people. And Stephen Paddock, the Las Vegas shooter, passed a federal background check without lying. He killed fifty-nine people in the deadliest mass shooting in a uniquely American history.
Any effort to end the mass shooting epidemic of late ought to be commended. That being said, it is fair to point out that certain efforts are more worthwhile than others. The Justice Department promised stricter enforcement of existing federal gun laws a decade ago, yet mass shootings only grew in frequency and lethality. As demonstrated this past weekend, millions of Americans are demanding real and immediate action on gun control. It is hard to imagine that their demands for change will be assuaged by a strongly worded promise to enforce what is so obviously a broken system. They have heard it all before should greet it with skepticism.